This introduction presents the book’s framework for the study of the transnational legal ordering of fiduciary law. It notes the key conceptual tools of TLO theory (such as normative settlement and the recursivity of law) and explains how these tools bear upon analytic, normative, and sociolegal inquiries into transnational fiduciary law. The introduction discusses the role of framing problems in fiduciary terms in transnational legal ordering, the potential, but uneven, formation and institutionalization of fiduciary law transnationally, the recursive, transnational development and limits of fiduciary law over time, the conceptual frontiers of transnational fiduciary law, and the contributions of the book’s chapters. The conclusion presents the book’s principal findings regarding fiduciary law and its relation to theorizing transnational legal ordering.

This chapter explores two key concepts in contract law. First, it identifies the parties to a contract and the rules that help in that process. In particular, the doctrines of privity and agency, which assist with determining who incurs rights and obligations under a contract, are discussed. Second, the chapter considers the terms of a contract, including how to identify, incorporate and interpret them. Specific attention is paid to the various types of contract terms and how they should be interpreted.

This chapter considers how intangible assets that businesses develop, such as inventions, designs and brands, as well as business ideas and information, can be protected pursuant to Australian intellectual property (IP) laws. It identifies that various IP rights are protected by statute, while others are protected pursuant to common law. It explains that some forms of intellectual property require businesses to apply and register for protection before an IP right can be claimed, such as designs, patents and trade marks, while others, such as copyright, dont require any application or registration. The chapter highlights that an array of IP rights can be used to protect different aspects of a business’s goods and/or services. For example, a business’s product might have a patent that attaches to it regarding how it works, a registered trade mark protecting its brand name, and a design for its appearance. The more IP rights that can be used to protect a particular good or service, the more defiant the good or service will be to imitation and competition.

There are many taxes in Australia that operate at the federal, state and local levels. Taxpayers must understand their tax obligations by identifying which taxes apply to them and understanding the requirements they must meet in order to comply with the tax laws. Federal tax laws are administered by Australia’s federal revenue authority, the Australian Taxation Office (ATO), and state taxes are administered by state-based revenue authorities. This chapter will cover two types of federal taxes: income tax and the goods and services tax (GST).

In an ideal world, people who enter into contracts would choose to enter the contract, and agree to its terms, because they have accurate and comprehensive information on which to base their decision. This chapter will first explain when a contract may be invalid, because one or both parties entered into the contract under some sort of misapprehension, or on the basis of misinformation. We will look at mistake (mutual mistake, unilateral mistake and common mistake) and misrepresentation. We will also briefly explain the old action ‘non est factum’ (‘not my deed’) and the remedy of rectification. Second, the chapter will explore when a contract may be invalid because of ‘unfair’ conduct by one of the parties – for example, where one party (Party A) enters an agreement because another party (Party B) subjected A to undue pressure (duress or undue influence); or because the conduct of B is so ‘unconscientious’ or the contract is able to be set aside in equity for unconscionable conduct.

This chapter examines the law of sale of goods. The statutory regime across the states and territories is explained before the specific concept of contracts for the sale of goods is discussed. The chapter then considers the various implied terms that become a part of such contracts and the consequences for violation of these terms. A brief discussion of the various rules pertaining to delivery follows, before the chapter concludes with an outline of the various remedies available to aggrieved parties when sale of goods contracts are breached.

This chapter will introduce the idea of ‘ethics’, and then the subset of ‘business ethics’. You will read real-world examples of (often poor) behaviour from companies, and understand how that behaviour can be considered through the lenses of business ethics, the ethical director, corporate governance with a focus on corporate social responsibility, and ethical marketing and advertising. By the end of this chapter, you will have a broad understanding of how these concepts fit together, and how they interact with the legal regulations around companies and businesses discussed in other parts of this text.

This chapter focuses on what occurs when a contract is performed and brought to an end. It discusses the rules regarding performance, termination, and the resulting remedies available in the event of a breach of contract. The concepts covered in this chapter are of vital importance to contracting parties. For instance, parties may wish to know how to fulfil their contractual obligations in order to bring a contract to a natural end. Conversely, they may want to know how to get out of a contract altogether, potentially ending it early, resulting in a breach. Assessing the various remedies that are available in the event of a breach of contract will therefore assist parties in shaping their interactions with one another, as well as protect them where they are the subject of a breach.

Work is a universal human experience, making it highly applicable and interesting to study in a legal context. This chapter considers Australia’s workplace relations system, providing an overview of the complex framework of regulation, which differs between occupations and industries and, in some instances, between the federal and state/territory levels. It begins by considering the main sources of Australia’s employment law; operation of the Fair Work Act 2009 (Cth); the Fair Work Commission; the Fair Work Ombudsman; the National Employment Standards; Modern Awards and enterprise agreements; employment contracts; and the distinction between employees and independent contractors. Finally, it assesses how the various duties imposed by Australia’s workplace relations system can be enforced through an application for unfair dismissal.

This chapter covers personal property, which is a broad category and a developing one. It is the most important type of property today in the commercial world, partly because of its breadth. The chapter starts by placing personal property in the wider area of property, distinguishing it from land or interests in land. Whether something is land or personal property can have important consequences for its ownership, or security interests over it. We will also examine the test applied to decide whether something that was goods has become a ‘fixture’, and thus part of the land. Second, we will look at the usual classifications within personal property, which have legal consequences. Possession, and its acquisition or loss, plays a crucial role when considering ownership of personal property. Lastly, what can be done when a holder’s rights in personal property are interfered with? We will look at the main remedies available to enforce those rights.

This chapter explores the legal framework governing consumer dealings and competition in the Australian market. It focuses on the laws that concern how businesses interact with consumers, especially when selling them consumer goods, services or land. It also addresses consumer rights with respect to goods that fall short of expected standards of quality and performance, and explains what happens when businesses engage in anti-competitive behaviour.

This chapter considers how someone can incur civil liability for their misconduct (whether intentional or otherwise) in a business setting. In particular, the tort of negligence, which concerns civil wrongs involving a failure to fulfil a duty of care owed to others, is discussed in depth. The chapter explains how a duty of care generally arises and can be breached in a variety of common commercial contexts. It also explains how another party might end up assuming responsibility for any physical or mental injuries or financial losses that occur. Other scenarios involving civil liability in business, such as where someone acts recklessly leading to another person being injured or killed, are also addressed.

Insurance is a concept most people are familiar with. The majority of us insure at least one item of property that we own, such as our home and our car. Some of us also insure our health, the trips we take, or even our own lives. The idea of insurance is to transfer the risk of something bad happening to ourselves or our property to somebody else (the insurer). In this chapter, we will first discuss the general concept of insurance before looking at the relevant regulatory framework. The chapter then discusses the various features of an insurance contract before explaining the process for making such a contract. The key duties of utmost good faith and disclosure are then examined, followed by the principle of misrepresentation and the effects it has on an insurance contract. Finally, the chapter considers the basic principles of interpretation that apply to insurance contracts, along with the remedies available to the parties when things go wrong.

In the 21st century, it doesnt necessarily take much to start a business – you can set up on your own, with just an idea and a website or social media account. However, as most aspects of business today are highly regulated, either at the state or federal level, advice as to which business structure is most appropriate for a new or existing business venture will be fundamental to its success or failure. This chapter examines potential business structures in relation to a number of key factors and provides examples for you to consider the impact of each business structure in practice. In this chapter, seven business structures will be examined in detail: sole trader, partnership, joint venture, franchise, trust, unincorporated association and incorporated association. The chapter will also briefly introduce the corporation, which is discussed in greater detail in Chapter 14.

This chapter explores the legal framework governing security interests over personal property, which is a major aspect of business finance. The focus will be on the Personal Property Securities Act 2009 (Cth) (PPSA). The chapter will explain how its concepts and registration system (PPSR) apply to priority disputes between security interests in personal property. It will also examine the impact of the PPSA on insolvency.

This chapter provides a concise overview of the Australian legal system. First, it defines business law. It then presents the main sources of law and their classification. Next, the chapter identifies the main legal and political institutions in Australia and outlines their powers. The chapter then explains how laws are made and enforced by these institutions. Finally, the chapter provides a practical perspective on how to answer legal problem questions.

In our day-to-day living, we make contracts all the time, whether or not we realise we are doing so. The simple act of buying a new book, purchasing a cup of coffee, or requesting an Uber ride each requires the formation of a contractual agreement. Whenever you buy something or agree to pay money for a service, you are making a contract, whether you sign a written agreement or not. This chapter provides an overview of how contracts are formed in Australia. A contract, generally speaking, is a legally enforceable agreement on a set of promises. The chapter begins by explaining the importance of entering into contractual relationships for individuals and businesses alike. Australia’s sources of contract law are identified. The chapter then examines each of the key elements required in order for a valid and binding contract to be formed. Next, it considers the equitable doctrine of promissory estoppel, which operates to protect parties in the event that one or more of the requisite elements of formation of a contract is missing. Finally, the chapter examines the impact of technology on the formation of contracts.

The company form of business structure is one of the most common in the world today. As discussed in the previous chapter, there are a variety of benefits that make the corporate form the most appealing for many business operators, and also for investors and other stakeholders. This chapter examines this dominant business structure in detail, and explains the regulations in place around it. It identifies the legislation and other regulatory tools that enable the formation of companies in Australia, the process of incorporation and its legal consequences, what it means to be a member of a company, how companies are managed and the duties that are owed by the persons in control, companies financial reporting obligations, and the processes involved when a company becomes insolvent or otherwise needs to be wound up. You will follow a practical example across the course of this chapter, identifying how the company business structure would affect this startup business, and the impact that the legal regulation in this area will have on the individuals within and associated with this business.

This introduction traces aspects of the history of fiduciary duties in business law and scholarship. Despite fiduciary law’s centrality to business law, the chapter describes how the contractarian revolution of the 1980s contributed to the marginalization of fiduciary duties, both in theory and doctrine. However, subsequent developments, both in case law and in scholarship, have questioned some of the core assumptions of the early wave of contractarian theory. The introduction outlines three critiques that scholars have levied against the early contractarians’ view of fiduciary duties, and connects these critiques to the eighteen chapters in the volume. The introduction also provides a roadmap of our contributors’ arguments.