财产管理法与财务知识分析(101页PPT).pptx

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1、BUSINESS SCHOOLLegal Environment of BusinessThreshold Legal Concepts:PROPERTY2Property relevant legislationExamples of NSW statutes regulating property+long titlesSALE 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 and consoli

2、date 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.3Property relevant l

3、egislationExamples of NSW statutes regulating property+long titlesWILLS,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 a deceased person and

4、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+long titlesRESIDENTIAL TENANCI

5、ES 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 Wales with respect to landlords an

6、d tenants;to amend the Consumer Claims Tribunals Act 1974 in relation to rental bonds claims;and for other purposes.Property rightsPersonal propertyChattelReal propertyFixtureTenant?LeaseChose in actionLandlord?Legal interest In real propertyBank?Mortgage Equitable interest in real propertyCheque Bo

7、ok?Share certificates?Chose in actionCopyrightChose in action6Property concepts and definitionsproperty can refer to -rights of ownership OR-objects of ownershipproperty can be-real property/realty OR-personal property7Property concepts and definitionsReal propertyaction in rem or a real actionimmov

8、ableland,fixturesPersonal Propertyaction in personam or a personal actionmovablesgoods/chattels etctangibles/intangiblesReal property9Real Propertyreal property=land+fixtureswhat is land?Latin maxim:cuis est solum eius est usque ad coelum et ad inferosis land the surface and everything under it to t

9、he centre of the earth and everything above it to the heavens?Physical limits of land10Physical limits of land the substratumLandowner does not own royal minerals(gold and silver)and Crown land grants usually reserve rights in minerals,petroleum etc under the surface to the Crown.Physical limits of

10、land11Physical limits of land the airspace above the surfaceProblems with overhanging branches,signs and cranes,aerial photography etcHow far does the landowners interest in land extend?Real property:physical limits of land12Bernstein of Leigh(Baron)vSkyviews&General Ltd 1978 1 QB 479Student case pr

11、esentationTopic 4Strata title13Strata title legislation creates title in blocks of airspace above the surface of the land,making it possible to create separate ownership of units in a multi-storey building.The legislation also creates a body corporate(consisting of the various owners)to own and cont

12、rol common property.14Real Property real property=land+fixtureswhat is a fixture?Latin maxim:quicquid plantatur solo,solo ceditdoes everything that is fixed 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?Fix

13、tures15Is it a fixture?depends on the intention of the person who affixed the item of personal property to the land:Australian Provincial Assurance Co Ltd v Coroneo(1938)38 SR(NSW)700In determining intention,consider:-degree of annexation-purpose of annexation-ease of removal-damage caused by remova

14、l.Real property:fixture?16National Australia Bank Limited v Blacker 2000 FCA 1458(16 October 2000)Student case presentationTopic 4Personal PropertyPersonal Property-definitionsPersonal property=any property that is not real propertyIncludes:-chattels real-leasehold interest-chattels personal-choses

15、in possession-choses in action18Personal Property-definitionsWhat is personal property?-chose in possession=tangible item 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

16、 arising from mere possession and subject to being overridden by the absolute owner but otherwise good title.19Personal Property20Ownership v Possessionrights 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 D

17、elamirie(1722)93 ER 664-National Crime Authority v Flack(1998)86 FCR 16Personal Property-bailmentA bailment is where one person(the bailee)takes possession of the goods of another(the bailor)but does not assume ownershipExamples include:-leaving your computer with a repairer-storing your goods in a

18、warehouse-leaving your car in a car park-borrowing a book from the library.Duties of a bailee,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 go

19、ods-the duty to return the goods upon expiration of the bailment21Personal Property-definitionsWhat 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

20、 partnership,right to a legacy under a will,an interest in a trust estate(equitable)-rights are claimed or enforced by taking legal action not by taking physical possession22Interests in landFreehold interests Estate in fee simpleLife tenancy Tenancy in remainderCo-ownership of any interest Joint te

21、nantsTenants in commonLeasehold Landlord(usually fee simple)Tenant(possessory interest)Acquiring ownership of propertyby 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

22、writ of execution over goods-compulsory acquisition 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 owne

23、rship of propertyby consent/agreement-Sale-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 landcontract must

24、be in writing otherwise it is not enforceablestandard formsconveyancing procedure-preparation of the written contract;exchange or signing of contracts;searches and inquiries;settlementTorrens System-Real Property Act 1900(NSW)-Registrar General/Land Titles Office/public register-the state/government

25、 issues a certificate 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 title 262728Contracts for the sale of goodsSALE OF GOODS ACT 1923-SECTION 6(1)(1)A contract of sal

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

27、 and things 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

28、 may be implied from the conduct of the parties.Contracts for the sale of goodsSALE 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 is

29、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 such fau

30、lt: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 goodsThe time at which ownership/property passes is important because from that time:-the buyer can exercise rights of

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

32、e 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 goodsTransfer of property/ownership by a non-owner SALE OF GOODS ACT 1923 SECTIONS 26-29 The nemo dat rule-No person can pass a better ti

33、tle 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 sale-is a buyer in possessi

34、on after another sale.31Contracts for the sale of goods:buyers remediesIf 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 contract.-Note:the right to repudia

35、te is lost if the buyer has accepted the goods by:intimating to the seller that the goods are accepteddoing an act inconsistent with the sellers ownershipretaining the goods for a reasonable period without rejecting them3233Contracts for the sale of goods:sellers remediesIf the buyer breaches the co

36、ntract,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:lienstoppage in transituright of resale.Acquiring ownership of propertyby consent/agreement-G

37、ift-Inheritance under a will34Legal and equitable interests in propertylegal interests are property interests recognised by the common lawequitable interests are property interests protected by equity;equity will intervene to prevent a legal owner acting so as to deprive others of interests in the p

38、roperty to which they are entitledrecall:courts of Common Law v Court of Chanceryexamples of equitable interests -interest under an option to purchase-interest under a contract for the sale of land35Intellectual property37What is intellectual property?Intellectual property or IP refers to a variety

39、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 exercised not by taking possession but by taking legal action38

40、What 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 terms,this means your proprietary knowledge-a key component of suc

41、cess 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 IPPatents-For new or improved products or processesTrade marks-For letters,words,phrases,sounds,smel

42、ls,shapes,logos,pictures,aspects of packaging or a combination of these,to distinguish the goods and services of one trader from anotherDesigns-For the shape or appearance of manufactured goodsCopyright-For original material in literary,artistic,dramatic or musical works,films,broadcasts,multimedia

43、and computer programsCircuit Layout Rights-For the three-dimensional configuration of electronic circuits in integrated circuit product or layout designsPlant Breeders rights-For new plant varietiesConfidential information and trade secrets39Different Intellectual Property rightsRecipe for Recipe fo

44、r contents contents Trade SecretTrade SecretManufacturing Manufacturing Manufacturing Manufacturing method-patentmethod-patentmethod-patentmethod-patentBottle shape Bottle shape Bottle shape Bottle shape registered registered registered registered designdesigndesigndesignName and logo Name and logo

45、Name and logo Name and logo registered registered registered registered trademark trademark trademark trademark Writing Writing Writing Writing copyrightcopyrightcopyrightcopyrightSource of IP rightsFederal legislation-why?Commonwealth Constitution section 51(xviii)confers legislative power with res

46、pect to copyright,patents of inventions and designs,and trade marks.-E.g.Copyright Act 1968(Cth);Trade Marks Act 1995(Cth)BUT other laws also important in this areaCommon law e.g.tort of passing off,contract law and equitable action for breach of confidenceStatutory action for misleading or deceptiv

47、e conduct:section 18 Australian Consumer Law(see week 12 notes)41What is IP Australia?an independent agency within the Department of Innovation,Industry,Science and Researchadministers statutes relating to IP and Australias IP rights system in relation to-Patents-Trade marks-Designs-Plant breeders r

48、ightsFormal steps must be taken to register these IP rights and obtain legal rights of ownershipContrast other IP rights which are automatic-Copyright-Circuit layout rights42Protecting IPThe statutory IP regime confers a limited monopoly on the proprietorWhy?Arguments for protecting creative effort

49、include:-economic arguments:protection induces creators to produce work-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 attr

50、ibuted;right of integrity of authorship43International dimensions of IPA 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