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Chapter

Cover Sealy and Hooley's Commercial Law

18. Negotiable instruments  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter introduces negotiable instruments as a method of payment in commercial transactions. The law governing negotiable instruments merits consideration for two reasons. First, negotiable instruments are still used as a method of making payment in the commercial world, especially in certain areas of international trade. Secondly, the law relating to negotiable instruments encapsulates many of the fundamental principles and concepts of commercial law in general. This chapter first considers the definition of a negotiable instrument, as well as the concepts of ‘instrument’ and ‘negotiability’, before explaining how instruments come to be negotiable. It also discusses different types of negotiable instrument such as bills of exchange, cheques, promissory notes, bank notes, treasury bills, share warrants, and certificates of deposit. Finally, it describes the advantages of a negotiable instrument as a mode of payment.

Chapter

Cover Principles of Banking Law

14. Lending  

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

This chapter considers lending in liberalized markets, where banks enjoy greater autonomy in their choice of borrower, the terms on which they lend, and the exercise of remedies on a borrower's default. It focuses on commercial lending by banks, and thus does not consider the additional issues that arise in relation to consumer lending. Commercial lending by banks can take various forms. Bankers often use the generic term ‘facility’ to describe them all. The most basic is the term loan, where a specified maturity date sets the time for ultimate repayment. The chapter discusses the negotiation of the agreement for commercial loan facilities; the facility and its repayment; conditions precedent, representations and warranties, covenants; the negative pledge and pari passu clauses; and default.

Chapter

Cover Commercial Law

1. An introduction to commercial law  

This chapter, which determines whether or not commercial law is a distinct legal topic, begins with a much quoted passage from Professor Sir Roy Goode stating that the answer to the question may, in fact, be no. According to Goode, if commercial law is used to refer to ‘a relatively self-contained, integrated body of principles and rules peculiar to commercial transactions, then we are constrained to say that this is not to be found in England’. Without such unifying principles, it merely amounts to a ‘label which is useful for gathering together diverse material with no obvious home of its own, so as to aid exposition on a lecture course or in a textbook, or for the better organisation of the business of the High Court of Justice … but no more’. The chapter also charts the evolution of commercial law, from the creation of the lex mercatoria through to the development of transnational commercial law. Finally, the chapter discusses the various sources of commercial law.

Chapter

Cover Cheshire, Fifoot, and Furmston's Law of Contract

5. Intention to Create Legal Relations  

M P Furmston

This chapter, which examines the requirements of intention to create legal relations, discusses its application to domestic agreements such as agreements between husband and wife and commercial agreements.

Chapter

Cover Koffman, Macdonald & Atkins' Law of Contract

6. Intention to create legal relations  

This chapter considers the final element of the formation of the contract: the intention to create legal relations. There is generally no difficulty in finding this requirement is fulfilled in commercial cases, but such intention is generally assumed to be absent in domestic or social agreements. The parties’ intentions may usually reflect these assumptions, but the issue of underlying policy is addressed. In commercial situations, issues of ‘intention to create legal relations’ are more likely to arise in relation to a clause which it is claimed is intended to show that there was no such intention in relation to the particular agreement.

Chapter

Cover Commercial Law

3. An introduction to the law of agency  

This chapter discusses the law of agency, which is a complex, subtle, and often misunderstood subject. Understanding it is, however, important, especially given the extent to which it can affect commercial and other areas of the law. It has also been established that, for many businesses, the use of agents is invaluable, and significant areas of commercial activity could not continue without the existence of agency. Several basic foundation issues relating to the law of agency, such as the sources of agency law and the various types of agent that exist, are discussed here. The chapter begins by determining the legal meaning of ‘agency’. Unfortunately, whilst many definitions of agency exist, the concept is ‘notoriously slippery and difficult to define’, according to Bowstead and Reynolds. The chapter also looks at the various forms of agent, including the development of the commercial agent.

Chapter

Cover Commercial Law

6. Relations between principal and agent  

This chapter discusses the legal relationships that exist between the principal and agent, and, in particular, focuses on the duties that each party owes to the other. The precise scope and content of these duties will depend upon a number of factors, including whether the agency is contractual or gratuitous, whether the agent is acting within the scope of his authority, whether the agent is a specific type of agent upon whom extra duties are placed, and whether the agent is a commercial agent or not. There are legal relationships that can exist between the three parties involved in a typical legal relationship, namely, the relationships between principal and agent, between principal and third party, and between agent and third party. The chapter begins by discussing the duties that an agent owes to his principal.

Chapter

Cover Holyoak and Torremans Intellectual Property Law

18. Dealing in copyright  

This chapter discusses the commercial exploitation of copyright, both in a domestic and in a European context. It covers the Crown copyright in the UK; commercial exploitation of copyright in the UK; and exploitation under European law, i.e. friction with the free movement of goods and competition law.

Chapter

Cover Sealy and Hooley's Commercial Law

1. An introduction to commercial law  

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter introduces the reader to commercial law. It first considers the nature of commercial law by focusing on the definitions offered by previous scholars of note. It then examines its function and historical development, and discusses various sources of commercial law such as contracts and national legislation. In addition it refers importantly to the role of equity and trusts in commercial law, to public law in the commercial arena, and to the philosophy and concepts of commercial law. Possible codification of commercial law is discussed. Finally, the chapter assesses the challenges for commercial law in the twenty-first century and briefly discusses the impact of Brexit on English commercial law.

Book

Cover Essential Cases: Contract Law
Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. Essential Cases provides you with succinct summaries of some of the landmark and most influential cases in contract law. Each summary begins with a review of the main case facts and decision. The summary is then concluded with expert commentary on the case from the author, Nicola Jackson, including an assessment of the wider questions raised by the decision. It can act as a succinct reference source alongside your core textbooks as you proceed through your course. It can also be used as a stand-alone revision aid as you approach examinations. But central to the Essential Cases series is the aim to encourage your own critical exploration of the legal matters under discussion. Where possible, a link to a free-to-access full version of the judgment is included in each summary, providing you with an opportunity to deepen your understanding by reading the judgment of the court for yourself.

Chapter

Cover Essential Cases: Equity & Trusts

Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Book

Cover Essential Cases: Contract Law 5e
Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. Essential Cases provides you with succinct summaries of some of the landmark and most influential cases in contract law. Each summary begins with a review of the main case facts and decision. The summary is then concluded with expert commentary on the case from the author, Nicola Jackson, including an assessment of the wider questions raised by the decision. It can act as a succinct reference source alongside your core textbooks as you proceed through your course. It can also be used as a stand-alone revision aid as you approach examinations. But central to the Essential Cases series is the aim to encourage your own critical exploration of the legal matters under discussion. Where possible, a link to a free-to-access full version of the judgment is included in each summary, providing you with an opportunity to deepen your understanding by reading the judgment of the court for yourself.

Chapter

Cover Essential Cases: Equity & Trusts

Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, House of Lords  

Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1, House of Lords. The document also includes supporting commentary from author Derek Whayman.

Chapter

Cover Contract Law

12. Boilerplate Clauses  

This chapter examines some standard clauses found in commercial contracts today (often known as ‘boilerplate clauses’). The focus is on commercial contracts and terms that will, in all probability, have been drafted by lawyers. After first setting out some general considerations that relate to the structure of modern contracts, the discussion moves on to examine some standard form clauses to be found in such contracts. These include general clauses, retention of title clauses, price escalation clauses, clauses making provision for the payment of interest, force majeure clauses, choice of law clauses, arbitration clauses, jurisdiction clauses, hardship clauses, entire agreement clauses, no oral modification clauses, termination clauses, assignment, and, albeit briefly, exclusion and limitation clauses.

Chapter

Cover The Principles of Equity & Trusts

1. An Introduction to Equity  

This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines a fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.

Chapter

Cover Contract Law

9. Unfairness: undue influence, non-commercial guarantees, unconscionable bargains  

This chapter examines three doctrines that allow a party to set aside a contract: (1) undue influence, which deals with the abuse of relationships of trust and confidence; (2) a doctrine protecting non-commercial parties who guarantee another’s debts; and (3) unconscionable bargains, which deals with the exploitation of bargaining weaknesses. It discusses: (i) the justification for these doctrines; (ii) the burden of proof for undue influence, unfair non-commercial guarantees, and unconscionable bargains; (iii) how each element of the respective burdens of proof is satisfied; and (iv) whether the law is satisfactory, and if not, how it might be developed in the future.

Chapter

Cover Legal Systems & Skills

16. Making yourself more employable  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter focuses on the many additional skills needed to embark on a successful career in practising law, skills over and above the skills that you will have acquired during your time at University. It discusses personal characteristics, including your attitude and approach to your work, professionalism and empathy; team-working and leadership skills; the importance of delegation; how to plan and conduct effective meetings; client care; networking; marketing; IT and technology skills; and the use of social media. Using topical case studies, it considers the meaning of commercial awareness: what it is, how to develop this and how this might be explored at interviews.

Chapter

Cover Legal Systems & Skills

18. Understanding clients: individuals and businesses  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter uses a client case study to explore life events that will require individuals and businesses to have recourse to the law. It also looks at how both individuals and businesses raise money, showing that there are many reasons why individuals and businesses will have recourse to the law. Often the need for legal services is triggered by some form of important life event, such as moving house, divorce, or setting up a business. All life events will have a legal and financial impact on individuals and businesses. Lawyers need to anticipate their clients’ needs in the light of this.

Chapter

Cover Legal Systems & Skills

19. Businesses and the business environment  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter discusses the following: the importance of commercial awareness in understanding how businesses work; the main types of business structure (sole traders, partnerships, public and private companies), their organisation, and management; factors influencing management decisions; the environment in which businesses operate. It examines different markets, sectors, and industries, and the role of consumers within these markets; the increasing complexity of supply chains from business to consumer and the problems they face; the impact of competition within those different markets; and the challenges facing businesses within increasingly competitive global markets, including the advances in technology and environmental, social and governance issues (ESG).

Chapter

Cover Legal Systems & Skills

20. Essential economics and finance  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter focuses on the economic and financial environment, introducing the fundamentals of economics including an introduction to micro- and macro-economics, supply and demand, economic resources and fiscal and monetary policies, topical economic issues and the relationship between GDP, inflation and unemployment. It then looks at financial markets, with an introduction to stock markets, shares and bonds, and the major players within those markets, particularly the banks. It examines the fundamentals of money and finance: what money is, how to organise and account for it, and what happens when things go wrong. This includes an introduction to business accounts and an examination of corporate and personal insolvency.