Sunday, August 30, 2015
AGC (Advances) Ltd v McWhirter
case-note legal contract
(1977) 1 BPR 9454
An auctioneer at an auction does not make an offer to sell; bidders are the offeror. No contractual claim can arise unless and until the bidder's offer is accepted usually by the fall of the hammer, which means that the vendor is not bound to sell to the highest bidder.
This general rule does not change: (1) by an announancement at the auction that the highest bidder shall be the purchaser; (2) by an announancement that the property is on the market or the auction is without reserve.
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern)
case-note legal contract
[1953] 1 QB 401
This case is concerned with when a sale took take in a self-service pharmacy.
As per Somervell LJ, "...in the case of an ordinary shop, although goods are displayed and it is intended that customers should go and choose what they want, the contract is not completed until, the customer having indicated the articles which he needs, the shopkeeper, or someone on his behalf, accpets that offer."
As per Lord Goddard CJ, from whom this case is appealed:
"Therefore, in my opinion, the mere fact that a customer picks up a bottle of medicine from the shelve in this case does not amount to an acceptance of an offer to sell. It is an offer by the customer to buy and there is no sale effected until the buyer's offer to buy is accepted by the acceptance of the price."
Therefore, the display of goods for sale, whether in a shop window or on the shelves of a self-service store, is ordinarily treated as an invitation to treat, not an offer.
Letters to my students - Re. Late penalty
teaching rules
Dear Student,
You are referred to this letter because you have requested me, by way of email, not to apply late penalty to your current assignment, which, as a matter of fact, has been submitted after the stipulated deadline.
I receive an appreciable volume of such requests each trimester after each assignment. Replying to each individual request adds much unnecessary administrative burden, I, therefore, request you to read through the following analysis. If you think your situation falls outside the categories below, please do not hesitate to contact me.
You may have based your request on the following grounds:
1. You have only been late for a negligible period of time, which is too insignificant to warrant any late penalty.
2. This is your first time submitting an assignment online, which bars any late penalty being applied to you.
3. Your situation warrants special consideration (e.g. the request is on a medical ground), which immunes you from late penalty.
I will now explain the reasons why requests submitted to me on the above grounds should be dismissed.
1. If you are late for X seconds, no matter how small it may appear, and exempted from late penalty on the ground there are mere X seconds difference, then it is not reasonable to apply late penalty to whoever late for less than 2X seconds, because, with the same token, there are only X seconds difference between whoever submitted X seconds late and 2X seconds late. Repeatedly applying this logic, I cannot apply late penalty to whoever is late, which manifestly contravenes the intention of the marking criteria. Therefore, late penalty will be uniformly applied to students regardless of how much late they may appear to be and part day late is counted as whole day late.
2. A prudent student would have made leeway for potential technical difficulties, and ensured their submission made online by closely following Moodle manual or seeking IT support. You have failed to exercise your due skill and diligence expected from a prudent student and therefore late penalty is warranted. However, should you wish to apply for an extension on such a ground, please refer to the next paragraph.
3. As per university policy, students are required to seek assignment extension from the course coordinator through Moodle should they think their situation warrants special consideration. Granting such extensions falls outside my authority and therefore any such request submitted to me will be dismissed and students are subsequently redirected to the corresponding course coordinator. I am bound by the university policy to apply late penalty as it is stipulated in the marking criteria in the absence of a valid extension.
Having said all that, please do not hesitate to contact me if you think your situation is uncommon.
Best Regards,
Wen
Saturday, August 29, 2015
Williams v Milotin
case-note legal torts
[1957] HCA 83; (1953) 97 CLR 465
This is the authority of Australian's position on fault in trespass.
"At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff...intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise."
The present of intention to strike the plaintiff bars an action on the case.
"But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant's negligence"
This is where English and Australian courts have diverged. In Australia, if (1) direct (2) injury or harm resulted from defendant's (3) negligence, then an action can be brought as either trespass or an action on case or both. In UK, these two regimes do not overlap.
"Had the damage been caused indirectly or mediately by the defendant or by his servant...the action must have been brought as an action on the case and not otherwise..."
An action in trespass requires directness.
Saturday, February 21, 2015
Punishment should be based on motive
lsat legal logical-reasoning
The following is one of my favorite LSAT LR question (PT37, S2, Q22)
Political theorist: Many people believe that the punishment of those who commit even the most heinous crimes should be mitigated to some extent if the crime was motivated by a sincere desire to achieve some larger good. Granted, some criminals with admirable motives deserve mitigated punishments. Nevertheless, judges should never mitigate punishment on the basis of motives, since motives are essentially a matter of conjecture and even vicious motives can easily be presented as altruistic.
Which one of the following principles, if valid, most helps to justify the political theorist's reasoning?
(A) Laws that prohibit or permit actions solely on the basis of psychological states should not be part of a legal system.
(B) It is better to err on the side of overly severe punishment than to err on th side of overly lenient punishment.
(C) The legal permissibility of actions should depend on the perceivable consequences of those actions
(D) No law that cannot be enforced should be enacted.
(E) A legal system that, if adopted, would have disastrous consequences ought not be adopted.
"Many people" or "Some people" often signals opposing view. In this question, again, the political theorist believe punishment of those who commit crimes with benign motivations should not be mitigated although they deserve mitigated punishment, because the true motive is indiscernible. (A) (C) and (D) are clearly out of scope because this question is not concerned with the permissibility or enforceability of law. I think if (C) was modified to "The punishment of illicit actions should depend on the perceivable consequences of those actions", then (C) would have been correct, although such a claim is overly sufficient.
(E) is the second best option. "A legal system wherein the punishments are allowed to be mitigated on the basis of motives, if adopted, would have disastrous consequences". Such a claim would make (E) comparable to (B).
Monday, February 16, 2015
Common Errors of Reasoning
lsat logical-reasoning logic
Here is a collection of the common logical fallacies
#. Sufficiency. Confusing weakening an argument in support of a given conclusion with proving the conclusion itself to be false. Treating evidence showing mere plausibility as if it proves that the conclusion is in fact true.
"Some historians claim that a lengthy drought preceded the fall of the Aztec empire. But we know from Aztec writings that in at least one year during the supposed drought there was minor flooding. Thus, the claim that there was a lengthy drought prior to the fall of the Aztec empire is false."
"We know that the defendant was in the vicinity of the robbery when the robbery occurred. Therefore, the defendant is guilty of the robbery"
#. Internal Contradiction: Making conflicting statements.
"Everyone should join our country club. After all, it's an exclusive group that links many of the influential members of the community."
1. Ad Hominem: Attacking a person or their character rather than making a claim based on reasoning.
2. Adedote: Using a personal or isolated experience as compelling and worthwhile evidence; suggesting that a personal or unique experience can be applied to other circumstances
3. Appeal to Ignorance: Using human ignorance or the inability to prove something in order make a claim.
4. Appeal to Tradition: Using tradition or cultural belief to suggest that something is true or accurate; suggesting that, because something has long been done in a certain way, it must be the correct way.
5. Appeal to Consequences: Concluding that a premise is either true or false base on what the consequence of that premise would be.
6. Argumentum ad Baculum: Making an argument by inciting fear or making threat.
7. Argumentum ad Ignorantiam: Relying a person's or group of people's ignorance to make a claim; misleading a person or group by appealing to their lack of knowledge in a particular topic.
8. Argumentum ad Populum: Attempting to sway popular support by appealing to sentimental weakness rather than with facts to reason.
9. Badwagon: Claiming something to be true or accurate simply because most people believe it to be true or accurate.
10. Begging the question: Making a claim that uses a tacit or implied assumption; raises a question by assuming an answer or shared belief.
11. Black or White: Suggesting only two alternate conclusions exist when, in reality, several possibilities exist.
12. Cherry-pick: Cherry-picking a particular data set or collection of facts while ignoring others in order to make an argument that suits a particular purpose.
13. Circular Reasoning: Using evidence that hasn't been proven in order to prove something else, then using that something else to prove the original claim.
14. Composition: Making erroneous conclusions about the composition of a whole or part of something.
15. Confirmation Bias: Making an argument that relies heavily on a personal bias.
16. Confusion of Correlation and Causation: Making claims about the cause of something simply because there exists a correlation between two things.
17. Exclude Middle: Considering only the extremes in any argument and ignoring the possibilities that exist in between.
18. Half Truth: Intentionally misleading a person to believe something by telling something that is, in fact, true, but leaving out important information.
19. Loaded Question: Asking a question that, if answered, will imply a shared agreement.
20. Misunderstanding Statistics: Making strange or erroneous claims about a particular idea by using statistics that have little or no ability to make such a claim.
21. Non Sequitur: "It does not follow". Making a conclusion that does not follow from previously established premises or conclusions.
"Some critics claim that scientific progress has increased the polarization of society and alienated large segments of the population. But these critics are wrong because even a cursory glance at the past shows that society is always somewhat polarized and some groups are inevitably alienated."
The author attempted to use the following premise:
"...society is always somewhat polarized and some groups are inevitably alienated."
to prove the following conclusion:
"...these critics [scientific progress has increased the polarization of society and alienated large segments of the population] are wrong."
The fact that such a situation has always existed does not disprove that scientific progress has increased the severity of the situation.
22. Omniscience: Using non-qualified statement to suggest ideas that imply "all" or "every" thing or situation.
"Two of my friends were shortchanged at that store. Therefore, everyone gets shortchanged at that store."
23. Post Hoc, Ergo Propter Hoc: "It happened after, so it was caused by." Suggesting that, because something previously happened that is related to an event, the previous happening caused the new event.
24. Failure to Prove Otherwise: Taking lack of evidence for a position to prove that position is false or taking lack of evidence against a position to prove that position is true. Instead of proving something to exist or be true, an arguer asks his/her opponent to prove that it doesn't exist.
"The White House has failed to offer any evidence that they have reached a trade agreement with China. Therefore no such agreement has been reached."
Instead of proving A (no agreement established), the author asks his/her opponent (the White House) to disprove A and draw the conclusion that A is true based on his/her opponent's failure of disproving A.
"There has been no evidence given against the existence of God, so God must exist."
25. Red Herring: Diverting attention by changing the subject.
26. Reification: Treating abstract or hypothetical things or ideas as concrete realities.
27. Slippery Slope: Arguing that a change in procedure, law, or action will create a domino-effect of adverse consequences, suggesting if one thing happens, a series of things will inevitably happen.
28. Small Number Statistics: Using an instance of a small fraction of the population to make an argument for the greater population.
29. Straw Man: Concocting a false or made up scenario and then attacking that scenario in order to make an opponent look bad.
30. Tu Quoque: Avoiding engagement with another's arugment by arguing something unrelated in return.