LEGAL PROBLEM LEGAL PROBLEM QUESTIONS -QUESTIONS -

2. Picking the 2. Picking the issuesissues

The most important The most important skill in answering a skill in answering a legal problem is to legal problem is to be able to ‘spot’ be able to ‘spot’

the relevant issue the relevant issue of law being raisedof law being raised

Picking the issuesPicking the issues

Many exams frame “direct Many exams frame “direct questions” – they identify the area questions” – they identify the area and ask about it directly - e.g. and ask about it directly - e.g. Describe photosynthesis.Describe photosynthesis.

Legal exams however are typically Legal exams however are typically problem questions, where the area of problem questions, where the area of law to be tested is law to be tested is not clearly clearly identified e.g. Advise Johnidentified e.g. Advise John

You must work out what area of law You must work out what area of law to advise John about: i.e. you must to advise John about: i.e. you must pick the issue the question is raisingpick the issue the question is raising

First stepFirst step

Problem questions require an extra Problem questions require an extra level of analysis – level of analysis – first work out what first work out what the question is about before trying to the question is about before trying to answer it.answer it.

If you identify the correct legal issues If you identify the correct legal issues raised in the question you will almost raised in the question you will almost certainly pass – even if your certainly pass – even if your discussion of them is poor.discussion of them is poor.

Wrong issues?Wrong issues?

If your answer is a brilliant, well If your answer is a brilliant, well supported, well written discussion of supported, well written discussion of important legal issues important legal issues – but not those – but not those raised by the question – raised by the question – you will fail.you will fail.

Addressing the wrong issue, is Addressing the wrong issue, is demonstrating that you do not demonstrating that you do not understand that area of the law well understand that area of the law well enough to understand the issues enough to understand the issues raised by the question.raised by the question.

The right issueThe right issue David Beckham, David Beckham,

using a soccer ball at using a soccer ball at Wimbledon, would Wimbledon, would be out first matchbe out first match

Roger Federer, using Roger Federer, using a tennis ball at the a tennis ball at the World Cup, would World Cup, would not get a gamenot get a game

Legal problems need Legal problems need the right issue – not the right issue – not a great discussion of a great discussion of the wrong issue.the wrong issue.

Knowledge firstKnowledge first

Direct questionsDirect questions – allow you to read – allow you to read the question and then read/research the question and then read/research what the answer is. what the answer is. e.g “What is e.g “What is photosynthesis?” gives you a starting photosynthesis?” gives you a starting point for research.point for research.

Indirect (problem) questions Indirect (problem) questions – – require you to know the relevant area require you to know the relevant area well first. well first. If you do not know the law If you do not know the law you will not be able to spot the issues you will not be able to spot the issues which are being asked by the questionwhich are being asked by the question..

FirstFirst Read and prepare a Read and prepare a

summary of the summary of the relevant law before relevant law before attempting a problem attempting a problem question.question.

Do not try and work Do not try and work backwardsbackwards – unless – unless you understand the law you understand the law you will not be able to you will not be able to determine the issues.determine the issues.

Then?Then?

ReadRead the question the question very slowly and very slowly and very carefullyvery carefully

Make sure you Make sure you understand understand each each word in the word in the question – question – dictionaries are an dictionaries are an important toolimportant tool

UnderlineUnderline or or highlight important highlight important words.words.

UnderliningUnderlining

Aim to underline at Aim to underline at least least one thingone thing relevant to a relevant to a consideration of the consideration of the issues in issues in eacheach paragraphparagraph of the of the questionquestion

If you can’t – If you can’t – reread the reread the questionquestion as you as you will have missed will have missed issuesissues

Ask why?Ask why?

Ask yourself while reading, Ask yourself while reading, why why is this information here?is this information here?

What issueWhat issue is this meant to is this meant to make me think about?make me think about?

Am I given information which Am I given information which is is quirkyquirky or out of the or out of the ordinary? What issue does ordinary? What issue does this direct my attention to?this direct my attention to?

Are the words used similar to Are the words used similar to those in a those in a casecase or or statutestatute??

ExamplesExamplesIn a Contracts exam you read:In a Contracts exam you read: John is grumbling because he has so much John is grumbling because he has so much

homework What issue does this raise?What issue does this raise?

CapacityCapacity?? Does the information given in the question Does the information given in the question

that John has homework raise the possibility that John has homework raise the possibility that John is at school?that John is at school?

Does this mean that he will be a minor?Does this mean that he will be a minor? We don’t have complete information – but We don’t have complete information – but

the question gives us enough to raise this as the question gives us enough to raise this as an issue.an issue.

In a Contracts question you read:In a Contracts question you read:

While organising appointments for While organising appointments for facials for herself and her mother, Mary facials for herself and her mother, Mary chatted with the beautician about her chatted with the beautician about her audition for a major television part, and audition for a major television part, and told her that she needed the facial to told her that she needed the facial to look her best for what could be her look her best for what could be her breakthrough role. Her mother was also breakthrough role. Her mother was also her agent and would be negotiating any her agent and would be negotiating any contract for her. contract for her. What issue(s) does this What issue(s) does this raise?raise?

Ask why you are given the information?Ask why you are given the information?

This is a conversation at the time of This is a conversation at the time of contract formationcontract formation

Is it irrelevant? Merely there to add Is it irrelevant? Merely there to add ‘colour’ or interest to the question?‘colour’ or interest to the question?

Does it ask you to think about damages Does it ask you to think about damages and the 2and the 2ndnd limb in limb in HadleyHadley v v Baxendale?Baxendale?

If damages are available – what sort?If damages are available – what sort? Does it ask you to consider to whom the Does it ask you to consider to whom the

promise was made? promise was made? Coulls Coulls v v Bagot’s Bagot’s ??

Every word in a question Every word in a question is important – make sure is important – make sure

you you read read and and understandunderstand every word every word and and consider whyconsider why it has it has

been included in the been included in the questionquestion

A problem question A problem question is like a set of clues is like a set of clues – if you identify– if you identify

all the clues, all the clues,

you will be able you will be able

to spot the issueto spot the issue

Common mistakesCommon mistakes

Skimming:Skimming: you may quickly pick you may quickly pick one issue, but you will certainly miss one issue, but you will certainly miss many others raised by the questionmany others raised by the question

Reading carefully, Reading carefully, picking the first picking the first issueissue, and then skimming the rest of , and then skimming the rest of the question: again, you will have the question: again, you will have picked some of the issues, but not all picked some of the issues, but not all the issues you need to discuss.the issues you need to discuss.

Fast, but ineffective.Fast, but ineffective.

How many issues?How many issues?

Isn’t finding one issue enough? How Isn’t finding one issue enough? How many issues are in each question?many issues are in each question?

The only time finding one issue is The only time finding one issue is enough is when it is a one issue enough is when it is a one issue questionquestion

Questions are often drafted with “pass” Questions are often drafted with “pass” and “distinction” issues. The more and “distinction” issues. The more carefully you read the carefully you read the whole whole question, question, the more likely you will spot the more likely you will spot all the all the issuesissues – including the harder issues – including the harder issues

Words: legal or common Words: legal or common usage?usage?

Look carefully at the words used in the Look carefully at the words used in the questionquestion

Many legal terms also have common Many legal terms also have common meanings – and they may be differentmeanings – and they may be different

E.g. If the question uses “offer” or E.g. If the question uses “offer” or “accept” are they being used in a “accept” are they being used in a legal or everyday sense?legal or everyday sense?

You must think of the legal You must think of the legal meaning and see if it is satisfiedmeaning and see if it is satisfied

WordsWords

The words used provide important guides The words used provide important guides to the relevant issues, for example:to the relevant issues, for example:

““offer” doesn’t necessarily mean offer offer” doesn’t necessarily mean offer in a legal sense, but will often indicate in a legal sense, but will often indicate that offer/invitation to treat is an issue that offer/invitation to treat is an issue for discussionfor discussion

““promise” may have a legal meaning – promise” may have a legal meaning – consider estoppel or collateral contractconsider estoppel or collateral contract

Answering the question Answering the question askedasked

The last words of the problem The last words of the problem are generally the “question are generally the “question words”words”

Consider these very carefully Consider these very carefully and draft your answer to and draft your answer to address these questions, and address these questions, and only these questionsonly these questions

ExamplesExamples A question asks you to “advise Mary A question asks you to “advise Mary

what damages (if any) she may claim in what damages (if any) she may claim in respect of the breach of contract”respect of the breach of contract”

Which of the following issues does the Which of the following issues does the question require you to discuss?question require you to discuss?

Existence/formation of a contract?Existence/formation of a contract? The terms of the contract?The terms of the contract? Breach of any of those terms?Breach of any of those terms? Damages in contract?Damages in contract? Damages in tort?Damages in tort? Damages in equity?Damages in equity? Statutory damages?Statutory damages?

ExamplesExamples

The only issue you would need to The only issue you would need to discuss is damages for breach of discuss is damages for breach of contract – much of the rest (such as contract – much of the rest (such as the existence of the contract) could the existence of the contract) could be presumed from the facts given, be presumed from the facts given, and is not in issue – so doesn’t have and is not in issue – so doesn’t have to be discussed.to be discussed.

Of course every question is different Of course every question is different –there are no hard and fast rules, –there are no hard and fast rules, they must all be read carefully.they must all be read carefully.

Contentious issuesContentious issues

What if the issue you spot in the question What if the issue you spot in the question is contentious, and there is no settled legal is contentious, and there is no settled legal answer? Does this mean you have spotted answer? Does this mean you have spotted the wrong issue and should keep looking?the wrong issue and should keep looking?

Issues in exam questions are usually Issues in exam questions are usually based on contentious areas of law.based on contentious areas of law.

If you have a choice between a settled If you have a choice between a settled area of law and a contentious one, the area of law and a contentious one, the issue will usually be contentiousissue will usually be contentious

Contentious issuesContentious issues

Remember – contentious issues are Remember – contentious issues are unsettled and there are two (or unsettled and there are two (or sometimes even more) views as to sometimes even more) views as to what the relevant law is in a given what the relevant law is in a given situation.situation.

To discuss these issues properly, you To discuss these issues properly, you need to discuss both views.need to discuss both views.

This is one example of ‘arguing in the This is one example of ‘arguing in the alternative’alternative’

SummarySummary

1.1. The first step in a problem question The first step in a problem question is to pick the issues raised – and is to pick the issues raised – and address only theseaddress only these

2.2. Read the question slowly and Read the question slowly and carefullycarefully

3.3. Make sure you understand all words Make sure you understand all words usedused

4.4. Underline important issues as you go Underline important issues as you go throughthrough

SummarySummary

5. Think carefully about the words and 5. Think carefully about the words and the information in the question – what the information in the question – what issues is it asking you to think aboutissues is it asking you to think about

Problem questions are full of clues, Problem questions are full of clues, but you must read carefully to but you must read carefully to discover themdiscover them

6. Review your highlighted question. If 6. Review your highlighted question. If you have spotted all the issues, this you have spotted all the issues, this will be your essay plan.will be your essay plan.

SummarySummary

7. If you have not underlined, on 7. If you have not underlined, on average, something in every average, something in every paragraph, then paragraph, then re-read the re-read the questionquestion, as you will have missed , as you will have missed some issues.some issues.

8. 8. Aim to spot all the issues, not Aim to spot all the issues, not just the first issuejust the first issue

ExercisesExercises

Consider the following problem. Do Consider the following problem. Do not try to answer it – simply try and not try to answer it – simply try and isolate the legal issues which the isolate the legal issues which the facts of the problem are raising.facts of the problem are raising.

Alice runs a small stationery business specialising in Alice runs a small stationery business specialising in wedding invitations. Her husband John owns a large wedding invitations. Her husband John owns a large printing business, and because he buys such a large printing business, and because he buys such a large volume of paper, he is able to purchase his paper much volume of paper, he is able to purchase his paper much more cheaply than Alice. On Thursday night, after more cheaply than Alice. On Thursday night, after cooking John’s favourite meal, Alice asked John if he cooking John’s favourite meal, Alice asked John if he would supply her business with paper at his cost price. would supply her business with paper at his cost price. John said, “Of course honey. Whatever would make you John said, “Of course honey. Whatever would make you happy.” happy.” Alice then decides to invest in specialist inks. On Friday Alice then decides to invest in specialist inks. On Friday she rings her supplier at Mary’s Inks Pty Ltd and talks to she rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She discusses her plans to expand her wedding Mary. She discusses her plans to expand her wedding invitation business into programmes and place cards, invitation business into programmes and place cards, which means she will need to order additional ink which means she will need to order additional ink colours, and ink which is suitable for printing photos and colours, and ink which is suitable for printing photos and graphics. Mary tells Alice that all the ink they supply is of graphics. Mary tells Alice that all the ink they supply is of the highest quality. Alice orders 2 dozen black ink the highest quality. Alice orders 2 dozen black ink cartridges at the list price of $30.00 each, to be delivered cartridges at the list price of $30.00 each, to be delivered next Friday. She also inquires about gold and silver inks, next Friday. She also inquires about gold and silver inks, and is told that gold cartridges are available for $80.00 and is told that gold cartridges are available for $80.00 each, and silver for $75.00. Alice is unhappy with these each, and silver for $75.00. Alice is unhappy with these prices, and considers that as a long standing customer, prices, and considers that as a long standing customer, she should receive a better price. She tells Mary that she she should receive a better price. She tells Mary that she is prepared to pay $60.00 for the gold cartridges and is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver. Mary is unsure whether or not $50.00 for the silver. Mary is unsure whether or not these prices are acceptable.these prices are acceptable.

Alice tells her to think about, and that if she doesn’t hear Alice tells her to think about, and that if she doesn’t hear to the contrary, she will take 5 gold and 5 silver to the contrary, she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on cartridges, to be delivered with the black ink cartridges on Friday.Friday.On Friday morning, Alice receives a delivery from Mary – On Friday morning, Alice receives a delivery from Mary – of 24 black ink cartridges but no colour cartridges. Alice of 24 black ink cartridges but no colour cartridges. Alice rings Mary, thanks her for the delivery of the black rings Mary, thanks her for the delivery of the black cartridges, but notes there are no gold or silver cartridges. cartridges, but notes there are no gold or silver cartridges. Mary advises that she has decided not to supply them at Mary advises that she has decided not to supply them at Alice’s price – Alice protests that they had an agreement Alice’s price – Alice protests that they had an agreement about the coloured inks. Alice then rings John and asks about the coloured inks. Alice then rings John and asks him to send over some paper she needs – at cost price as him to send over some paper she needs – at cost price as agreed. John replies that he will certainly provide her with agreed. John replies that he will certainly provide her with paper, but that he needs to do so at market price. She paper, but that he needs to do so at market price. She protests and reminds him of last Thursday evening. He protests and reminds him of last Thursday evening. He replies “Ah yes. That was dinner, this is business.”replies “Ah yes. That was dinner, this is business.”After Alice gets off the ‘phone her assistant Peter shows After Alice gets off the ‘phone her assistant Peter shows her an order for wedding programmes on which he has her an order for wedding programmes on which he has been working, using the black ink supplied by Mary that been working, using the black ink supplied by Mary that day. The text was fine, but the photo of the bride and day. The text was fine, but the photo of the bride and groom has printed blotchy and streaky. He tells Alice groom has printed blotchy and streaky. He tells Alice there is a problem with the ink – it will not print photos there is a problem with the ink – it will not print photos properly. Advise Alice.properly. Advise Alice.

Spotting issuesSpotting issues

How many issues did you spot?How many issues did you spot? Do you have a starting point for Do you have a starting point for

research, or do you have to research, or do you have to understand the legal issues first?understand the legal issues first?

Could you answer the question now – Could you answer the question now – or do you need more?or do you need more?

First step?First step?

You need to You need to knowknow the law which the the law which the problem is seeking to testproblem is seeking to test

Assume the following legal propositions:Assume the following legal propositions: A valid contract requires an intention to create A valid contract requires an intention to create

legal relations. This is not always present legal relations. This is not always present between close family members.between close family members.

Even if a contract is silent, legislation such as Even if a contract is silent, legislation such as the Sale of Goods Act and the Trade Practices the Sale of Goods Act and the Trade Practices Act will imply terms into certain contracts to Act will imply terms into certain contracts to protect consumers and ensure that goods are protect consumers and ensure that goods are fit for their purpose, and are of merchantable fit for their purpose, and are of merchantable quality.quality.

Legal PrinciplesLegal Principles

In order for the fitness for purpose term to In order for the fitness for purpose term to become part of the contract, the purchaser become part of the contract, the purchaser must tell the seller what their purpose is.must tell the seller what their purpose is.

A valid contract requires an offer which A valid contract requires an offer which has been accepted. If there is anything has been accepted. If there is anything left to negotiate, a contract will not have left to negotiate, a contract will not have been formed.been formed.

Acceptance requires something to happen. Acceptance requires something to happen. Not responding to an offer, or silence, Not responding to an offer, or silence, cannot be a valid acceptance.cannot be a valid acceptance.

Having considered Having considered these legal these legal principles, read the principles, read the question again. question again. What legal issues What legal issues can you spot now?can you spot now?

Underline as you readUnderline as you read

What will you What will you underline/highlightunderline/highlight? What clues will ? What clues will you find to help you find to help you spot the you spot the issues?issues?

Alice runs a small stationery business specialising in Alice runs a small stationery business specialising in wedding invitations. Her wedding invitations. Her husbandhusband John owns a large John owns a large printing business, and because he buys such a large printing business, and because he buys such a large volume of paper, he is able to purchase his paper much volume of paper, he is able to purchase his paper much more cheaply than Alice. On Thursday night, more cheaply than Alice. On Thursday night, after after cooking John’s favourite mealcooking John’s favourite meal, Alice asked John if he , Alice asked John if he would supply her business with paper at his cost price. would supply her business with paper at his cost price. John said, “John said, “Of course honey. Whatever would make you Of course honey. Whatever would make you happy.” happy.” Alice then decides to invest in specialist inks. On Friday Alice then decides to invest in specialist inks. On Friday she rings her supplier at Mary’s Inks Pty Ltd and talks to she rings her supplier at Mary’s Inks Pty Ltd and talks to Mary. She discusses her plans to expand her wedding Mary. She discusses her plans to expand her wedding invitation business into programmes and place cards, invitation business into programmes and place cards, which means she will need to order additional ink which means she will need to order additional ink colours, and colours, and ink which is suitable forink which is suitable for printing photos and printing photos and graphicsgraphics. Mary tells Alice that all the ink they supply is of . Mary tells Alice that all the ink they supply is of the highest quality. the highest quality. Alice orders 2 dozen blackAlice orders 2 dozen black ink ink cartridges at the list price of $30.00 each, to be deliveredcartridges at the list price of $30.00 each, to be delivered next Fridaynext Friday. She . She alsoalso inquires inquires about gold and silver inks, about gold and silver inks, and is told that and is told that gold cartridges are available for $80.00 gold cartridges are available for $80.00 eacheach, and , and silver for $75.00silver for $75.00. Alice is unhappy with these . Alice is unhappy with these prices, and considers that as a long standing customer, prices, and considers that as a long standing customer, she should receive a better price. she should receive a better price. She tells Mary that she She tells Mary that she is prepared to pay $60.00 for the gold cartridges and is prepared to pay $60.00 for the gold cartridges and $50.00 for the silver$50.00 for the silver. Mary is . Mary is unsure unsure whether or not whether or not these prices are acceptable.these prices are acceptable.

Alice tells her to think about, and that Alice tells her to think about, and that if she doesn’t hear if she doesn’t hear to theto the contrary,contrary, she will take 5 gold and 5 silver she will take 5 gold and 5 silver cartridges, to be delivered with the black ink cartridges on cartridges, to be delivered with the black ink cartridges on Friday.Friday.On Friday morning, Alice receives a delivery from Mary – On Friday morning, Alice receives a delivery from Mary – of 24 black ink cartridges but no colour cartridges. Alice of 24 black ink cartridges but no colour cartridges. Alice rings Mary, thanks her for the delivery of the black rings Mary, thanks her for the delivery of the black cartridges, but notes there are no gold or silver cartridges. cartridges, but notes there are no gold or silver cartridges. Mary advises that she has decided not to supply them at Mary advises that she has decided not to supply them at Alice’s price – Alice protests that they had an agreement Alice’s price – Alice protests that they had an agreement about the coloured inks. Alice then rings John and asks about the coloured inks. Alice then rings John and asks him to send over some paper she needs – at cost price as him to send over some paper she needs – at cost price as agreed. John replies that he will certainly provide her with agreed. John replies that he will certainly provide her with paper, but that he needs to do so at market price. She paper, but that he needs to do so at market price. She protests and reminds him of last Thursday evening. He protests and reminds him of last Thursday evening. He replies “replies “Ah yes. That was dinner, this is businessAh yes. That was dinner, this is business.”.”After Alice gets off the ‘phone her assistant Peter shows After Alice gets off the ‘phone her assistant Peter shows her an order for wedding programmes on which he has her an order for wedding programmes on which he has been working, using the black ink supplied by Mary that been working, using the black ink supplied by Mary that day. The text was fine, day. The text was fine, but the photo of the bride and but the photo of the bride and groom has printed blotchygroom has printed blotchy and streakyand streaky. He tells Alice . He tells Alice there is a problem with the ink – it will not print photos there is a problem with the ink – it will not print photos properly. properly. Advise Alice.Advise Alice.

Why have we highlighted these Why have we highlighted these words? What clues do they give us?words? What clues do they give us?

Her Her husbandhusband John John Alice and John are married. Does this Alice and John are married. Does this

mean that the necessary intention to mean that the necessary intention to make a contract was present in their make a contract was present in their negotiations? Consider the other negotiations? Consider the other information highlighted about dinner, information highlighted about dinner, and John’s words to Alice.and John’s words to Alice.

These are clues that an important These are clues that an important issue to discuss is intention to create issue to discuss is intention to create legal relations.legal relations.

Note: Note: the question does not say the question does not say anywhere, ‘Advise Alice whether or anywhere, ‘Advise Alice whether or not she has an enforceable contract not she has an enforceable contract with John’, or ‘Advise Alice whether with John’, or ‘Advise Alice whether the fact that she is married to John the fact that she is married to John may create a presumption that she may create a presumption that she did not intend to form a contract with did not intend to form a contract with John for the supply of paper.’John for the supply of paper.’

This is in fact what the question is This is in fact what the question is asking – but in an asking – but in an indirect problem indirect problem questionquestion you must work this out you must work this out from the clues given. from the clues given. So read So read carefully.carefully.

More issuesMore issues

ink which is suitable forink which is suitable for printing printing photos and graphicsphotos and graphics. . In certain circumstances, legislation will In certain circumstances, legislation will

imply a term into a contract that the imply a term into a contract that the goods be fit for the purpose for which goods be fit for the purpose for which they have been bought. Here, Alice is they have been bought. Here, Alice is telling Mary what her purpose is in telling Mary what her purpose is in buying the ink. This is a clue that buying the ink. This is a clue that ‘fitness for purpose’ is an issue to ‘fitness for purpose’ is an issue to considerconsider

More issuesMore issues

Alice orders 2 dozen blackAlice orders 2 dozen black ink ink cartridges at the list price of cartridges at the list price of $30.00 each, to be delivered$30.00 each, to be delivered next next FridayFriday. . This is a contract for black ink This is a contract for black ink

between Alice and Mary – there is between Alice and Mary – there is nothing left to be negotiated and nothing left to be negotiated and they have both agreed. Provided the they have both agreed. Provided the contract is not breached there will contract is not breached there will be no issues to talk about here.be no issues to talk about here.

Pay attention to ‘little’ wordsPay attention to ‘little’ words

AlsoAlso We have a contract for black ink. We have a contract for black ink.

Now, Alice “also” inquires about Now, Alice “also” inquires about gold and silver inks. This is a clue gold and silver inks. This is a clue that there will be two issues – one that there will be two issues – one about the black ink (is it fit for the about the black ink (is it fit for the purpose for which it was supplied?) purpose for which it was supplied?) and coloured ink (was a contract and coloured ink (was a contract ever formed?) The existence of two ever formed?) The existence of two issues could easily be missed by issues could easily be missed by anyone skimming the question and anyone skimming the question and the ‘also’ clue.the ‘also’ clue.

Consider the words carefullyConsider the words carefully

InquiresInquires It is often important to look at the It is often important to look at the

word chosen. “inquires” suggests word chosen. “inquires” suggests negotiation, or requesting negotiation, or requesting information – a legal step which information – a legal step which comes before an offer which may comes before an offer which may be accepted to form a contract.be accepted to form a contract.

Legal issuesLegal issues

gold cartridges are available for $80.00 gold cartridges are available for $80.00 eacheach, and , and silver for $75.00silver for $75.00. . Is this an offer?Is this an offer?

She tells Mary that she is prepared to pay She tells Mary that she is prepared to pay $60.00 for the gold cartridges and $50.00 $60.00 for the gold cartridges and $50.00 for the silverfor the silver Has the offer been accepted? Or has Alice Has the offer been accepted? Or has Alice

made a ‘counter offer’?made a ‘counter offer’? UnsureUnsure

Has Mary accepted?Has Mary accepted?

More issuesMore issues

if she doesn’t hear to theif she doesn’t hear to the contrary,contrary, she will take 5 gold and 5 silver she will take 5 gold and 5 silver cartridges, to be delivered with the cartridges, to be delivered with the black ink cartridges on Friday.black ink cartridges on Friday. Consider carefully what is happening here Consider carefully what is happening here

– Alice is providing a way in which her – Alice is providing a way in which her offer for the gold and silver cartridges can offer for the gold and silver cartridges can be accepted. What does she suggest?be accepted. What does she suggest?

Is silence a valid method of consent?Is silence a valid method of consent?

Linking issuesLinking issues

““Ah yes. That was dinner, this is Ah yes. That was dinner, this is businessbusiness..”” Is this a new issue, or does it link in to a Is this a new issue, or does it link in to a

previous issue?previous issue? It is giving us information about whether It is giving us information about whether

or not husband and wife, John and or not husband and wife, John and Alice,intended to create legal relations.Alice,intended to create legal relations.

Information about issues is not always Information about issues is not always grouped together. Often you have to pick grouped together. Often you have to pick up the clues throughout the question in up the clues throughout the question in order to determine the relevant issues.order to determine the relevant issues.

More issuesMore issues

but the photo of the bride and groom but the photo of the bride and groom has printed blotchyhas printed blotchy and streakyand streaky.. Ask why this information has been given?Ask why this information has been given? It raises the issue of whether or not the It raises the issue of whether or not the

black ink was fit for the purpose for black ink was fit for the purpose for which it was bought.which it was bought.

Does it raise this issue directly?Does it raise this issue directly? Or do you have to work out the issue by Or do you have to work out the issue by

a careful consideration of the facts of the a careful consideration of the facts of the problem, utilising your legal knowledge.problem, utilising your legal knowledge.

AdviseAdvise

Advise Alice.Advise Alice. This is typical of the way in which problem This is typical of the way in which problem

questions phrase the actual question.questions phrase the actual question. ““Advise” should be treated as a Advise” should be treated as a

technical legal term – not in its technical legal term – not in its everyday sense.everyday sense.

““Advise” does not mean give practical Advise” does not mean give practical advice to Alice, counselling, general advice to Alice, counselling, general business advice, or advice based on business advice, or advice based on your personal experience.your personal experience.

AdviseAdvise

““Advise” is not asking you to help Alice.Advise” is not asking you to help Alice. It is not an instruction to show Alice how It is not an instruction to show Alice how

she can ‘win’, and to consider only she can ‘win’, and to consider only arguments which will help her to win.arguments which will help her to win.

Sometimes, in a legal problem, as in Sometimes, in a legal problem, as in life, your client has no legal case. life, your client has no legal case. Sometimes the advice is that there is no Sometimes the advice is that there is no cause of action, or no defence.cause of action, or no defence.

AdviseAdvise

Advise means: Advise means: Consider Consider allall the the legallegal issues (not issues (not

factual issues) raised by the problem factual issues) raised by the problem question;question;

Consider the Consider the lawlaw which will help you which will help you address those legal issues; and address those legal issues; and

ApplyApply that law to the issues that law to the issues To provide a To provide a conclusionconclusion – or advice – or advice

or answer – to the legal issues or answer – to the legal issues raised.raised.