财产管理法与财务知识分析.pptx

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1、BUSINESS SCHOOLLegal Environment of BusinessThreshold Legal Concepts: PROPERTY2Property relevant legislationExamples of NSW statutes regulating property + long titles SALE OF GOODS ACT 1923 - An Act to codify and amend the law relating to the Sale of Goods. CONVEYANCING ACT 1919 - An Act to amend an

2、d consolidate the law of property and to simplify and improve the practice of conveyancing; and for such purposes to amend certain Acts relating thereto. REAL PROPERTY ACT 1900 - An Act to consolidate the Acts relating to the declaration of titles to land and the facilitation of its transfer. 3Prope

3、rty relevant legislationExamples of NSW statutes regulating property + long titles WILLS, PROBATE AND ADMINISTRATION ACT 1898 - An Act to consolidate enactments relating to Will, Probate and Administration FAMILY PROVISION ACT 1982 - An Act to amend the law relating to the assurance to the family of

4、 a deceased person and certain other persons of adequate provision from the estate of the deceased person and certain other property TRUSTEE ACT 1898 - An Act for consolidating Enactments relating to Trusts and Trustees. 4Property relevant legislationExamples of NSW statutes regulating property + lo

5、ng titles RESIDENTIAL TENANCIES ACT 1987 - An Act relating to the rights and obligations of landlords and tenants under residential tenancy agreements; to make provision with respect to excessive rent increases and rents; to confer functions on the Consumer, Trader and Tenancy Tribunal of New South

6、Wales with respect to landlords and tenants; to amend the Consumer Claims Tribunals Act 1974 in relation to rental bonds claims; and for other purposes. Property rights6Property concepts and definitions property can refer to -rights of ownership OR-objects of ownershipproperty can be -real property/

7、realty OR-personal property7Property concepts and definitionsReal propertyaction in rem or a real actionimmovableland, fixturesPersonal Propertyaction in personam or a personal actionmovablesgoods/chattels etctangibles/intangiblesReal property9Real Propertyreal property = land + fixtureswhat is land

8、?Latin maxim: cuis est solum eius est usque ad coelum et ad inferosis land the surface and everything under it to the centre of the earth and everything above it to the heavens?Physical limits of land10 Physical limits of land the substratum Landowner does not own royal minerals (gold and silver) an

9、d Crown land grants usually reserve rights in minerals, petroleum etc under the surface to the Crown.Physical limits of land11 Physical limits of land the airspace above the surface Problems with overhanging branches, signs and cranes, aerial photography etc How far does the landowners interest in l

10、and extend?Real property: physical limits of land12Bernstein of Leigh (Baron) vSkyviews & General Ltd 1978 1 QB 479Student case presentationTopic 4Strata title13 Strata title legislation creates title in blocks of airspace above the surface of the land, making it possible to create separate ownershi

11、p of units in a multi-storey building. The legislation also creates a body corporate (consisting of the various owners) to own and control common property.14Real Property real property = land + fixtures what is a fixture? Latin maxim: quicquid plantatur solo, solo cedit does everything that is fixed

12、 to the land become part of the land, e.g. buildings and things fixed to buildings ? when is it important to know whether or not it is a fixture?Fixtures15 Is it a fixture? depends on the intention of the person who affixed the item of personal property to the land: Australian Provincial Assurance C

13、o Ltd v Coroneo (1938) 38 SR (NSW) 700 In determining intention, consider:- degree of annexation- purpose of annexation- ease of removal- damage caused by removal.Real property: fixture?16National Australia Bank Limited v Blacker 2000 FCA 1458 (16 October 2000)Student case presentationTopic 4Persona

14、l PropertyPersonal Property - definitionsPersonal property = any property that is not real propertyIncludes:- chattels real - leasehold interest- chattels personal- choses in possession- choses in action18Personal Property - definitions What is personal property ?- chose in possession= tangible item

15、 of personal propertyphysical thingseg books, furniture, cars, jewellery- ownership may be:- absolute i.e. a right to ownership superior to any other- possessory i.e. a right to ownership arising from mere possession and subject to being overridden by the absolute owner but otherwise good title.19Pe

16、rsonal Property20Ownership v Possession rights of the owner v rights of the person in possession“possession is nine-tenths of the law” rights to things found on anothers property- Armory v Delamirie (1722) 93 ER 664- National Crime Authority v Flack (1998) 86 FCR 16Personal Property - bailment A bai

17、lment is where one person (the bailee) takes possession of the goods of another (the bailor) but does not assume ownership Examples include:- leaving your computer with a repairer- storing your goods in a warehouse- leaving your car in a car park- borrowing a book from the library. Duties of a baile

18、e, if not specified in a contract, include:- the duty to retain possession of the goods during the bailment and to care for them- the duty to take care of the goods- the duty not to make unauthorised use of the goods- the duty to return the goods upon expiration of the bailment21Personal Property -

19、definitions What is personal property ?- chose in action= intangible personal property rightexamples: debts, shares, patents, copyright, statutory licences, negotiable instruments etc (legal); and examples: partners interest in a partnership, right to a legacy under a will, an interest in a trust es

20、tate (equitable)- rights are claimed or enforced by taking legal action not by taking physical possession22Interests in landFreehold interests Estate in fee simple Life tenancy Tenancy in remainderCo-ownership of any interest Joint tenants Tenants in commonLeasehold Landlord (usually fee simple) Ten

21、ant ( possessory interest )Acquiring ownership of property by operation of law- bankruptcy- Bankruptcy Act 1966 (Cth): property vests in trustee; not/available for payment of debts- court settlement- execution of a court judgment- writ over land or writ of execution over goods- compulsory acquisitio

22、n by government- Commonwealth Constitution:section 51 (xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;- administration of intestate estate24Acquiring ownership of property by consent/agreement- Sale-

23、contracts for the sale of land: Conveyancing Act 1919; Real Property Act 1900- contracts for the sale of goods: Sale of Goods Act 1923- Gift- Declaration of trust- Assignment of chose in action- Inheritance under a will25Contracts for the sale of land contract must be in writing otherwise it is not

24、enforceable standard forms conveyancing procedure- preparation of the written contract; exchange or signing of contracts; searches and inquiries; settlement Torrens System - Real Property Act 1900 (NSW)- Registrar General/ Land Titles Office/public register- the state/government issues a certificate

25、 of title that is conclusive evidence of ownership- the state/government maintains a register of all interests in land e.g. mortgages- the registered owner/proprietor has indefeasible title262728Contracts for the sale of goods SALE OF GOODS ACT 1923 - SECTION 6(1)(1) A contract of sale of goods is a

26、 contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price SALE OF GOODS ACT 1923 - SECTION 5 Definitions Goods include all chattels personal other than things in action and money. The term includes emblements and things

27、 attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. SALE OF GOODS ACT 1923 - SECTION 8 a contract of sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may

28、 be implied from the conduct of the parties. Contracts for the sale of goods SALE OF GOODS ACT 1923 - SECTION 25 Risk prima facie passes with property Unless otherwise agreed, the goods remain at the sellers risk until the property therein is transferred to the buyer, but when the property therein i

29、s transferred to the buyer, the goods are at the buyers risk, whether delivery has been made or not: Provided that where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for su

30、ch fault: Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party29Contracts for the sale of goods The time at which ownership/property passes is important because from that time: - the buyer can exercise

31、 rights of ownership- risk in the goods passes to the buyer SALE OF GOODS ACT 1923 SECTIONS 21-23 contain rules which determines when ownership/property passes from seller to buyer Note contract may contain a retention of title clause (aka Romalpa clause) provides that ownership does not pass to the

32、 buyer until the seller is paid in fullwhy? so that seller can recover the goods if buyer becomes insolvent (and is not just another unsecured creditor)30Contracts for the sale of goods Transfer of property/ownership by a non-owner SALE OF GOODS ACT 1923 SECTIONS 26-29 The nemo dat rule - No person

33、can pass a better title than that person possesses, e.g. the sale of a car by a thief. Exceptions to the rule include where the seller:- is acting with the owners authority or consent- is a mercantile agent- is exercising a power of sale- has a voidable title- is a seller in possession after another

34、 sale- is a buyer in possession after another sale.31Contracts for the sale of goods: buyers remedies If the seller breaches the contract by non-delivery, delayed delivery or defective goods, the buyer has a right:- to damages- to repudiate the contract if the seller has breached a condition of the

35、contract.- Note: the right to repudiate is lost if the buyer has accepted the goods by: intimating to the seller that the goods are accepted doing an act inconsistent with the sellers ownership retaining the goods for a reasonable period without rejecting them3233Contracts for the sale of goods: sel

36、lers remedies If the buyer breaches the contract, the seller has rights against the buyer personally and in relation to the goods themselves- Personal remedies include:- action for damages for non-acceptance- action for the price.- Real remedies include: lien stoppage in transitu right of resale.Acq

37、uiring ownership of property by consent/agreement- Gift- Inheritance under a will34Legal and equitable interests in property legal interests are property interests recognised by the common law equitable interests are property interests protected by equity; equity will intervene to prevent a legal ow

38、ner acting so as to deprive others of interests in the property to which they are entitled recall: courts of Common Law v Court of Chancery examples of equitable interests- interest under an option to purchase- interest under a contract for the sale of land35Intellectual property37What is intellectu

39、al property?Intellectual property or IP refers to a variety of rights conferred by law to encourage the creation of certain subject matter and to protect the economic interests of the creators or investors who fund themIntellectual property is a chose in action a form of personal property rights exe

40、rcised not by taking possession but by taking legal action38What is intellectual property?According to IP Australia Intellectual property represents the property of your mind or intellect. It can be an invention, trade mark, original design or the practical application of a good idea. In business te

41、rms, this means your proprietary knowledge - a key component of success in business today. It is often the edge which sets successful companies apart and as world markets become increasingly competitive, protecting your intellectual property becomes essential.Types of IP Patents- For new or improved

42、 products or processes Trade marks- For letters, words, phrases, sounds, smells, shapes, logos, pictures, aspects of packaging or a combination of these, to distinguish the goods and services of one trader from another Designs- For the shape or appearance of manufactured goods Copyright- For origina

43、l material in literary, artistic, dramatic or musical works, films, broadcasts, multimedia and computer programs Circuit Layout Rights- For the three-dimensional configuration of electronic circuits in integrated circuit product or layout designs Plant Breeders rights- For new plant varieties Confid

44、ential information and trade secrets39Different Intellectual Property rightsSource of IP rights Federal legislation- why? Commonwealth Constitution section 51(xviii) confers legislative power with respect to copyright, patents of inventions and designs, and trade marks.- E.g. Copyright Act 1968 (Cth

45、); Trade Marks Act 1995 (Cth) BUT other laws also important in this area Common law e.g. tort of passing off, contract law and equitable action for breach of confidence Statutory action for misleading or deceptive conduct:section 18 Australian Consumer Law(see week 12 notes)41What is IP Australia? a

46、n independent agency within the Department of Innovation, Industry, Science and Research administers statutes relating to IP and Australias IP rights system in relation to - - Patents- Trade marks- Designs- Plant breeders rights Formal steps must be taken to register these IP rights and obtain legal

47、 rights of ownership Contrast other IP rights which are automatic- Copyright- Circuit layout rights42Protecting IP The statutory IP regime confers a limited monopoly on the proprietor Why? Arguments for protecting creative effort include:- economic arguments: protection induces creators to produce w

48、ork- moral rights arguments: the moral or natural rights of authors and creators are worthy of protection in their own rightE.g. moral rights in copyright law right of attribution of authorship; right not to have authorship falsely attributed; right of integrity of authorship43International dimensio

49、ns of IP A number of multilateral treaties/agreements exist that deal with aspects of IP examples- Paris Convention 1883 (trade marks, industrial designs, patents)- Berne Convention 1886 (literary and artistic works)- Rome Convention 1961 (rights of broadcasters and performers) Most important is TRI

50、PS (Agreement on Trade-Related aspects of Intellectual Property rights)- Effective from 1 January 1995- Administered by the WTO (World Trade Organisation)- Members must satisfy standards concerning the availability scope and use of IP rights, enforcement of IP rights, dispute resolution etc44Interna