Semester 1, 2017
Common Law Assignment
INSTRUCTIONS
1. This assignment is worth 20% of your final mark for this subject.
2. Your assignment must be submitted by 12pm (midday) on Wednesday 19th April.
3. All questions must be answered.
4. With regards to formatting, your assignment must be typed with 1.5 or double spacing, and with
margins of at least 2cm on all sides. Size 12 font must be used.
5. The task is a common law assignment, so you are not required to discuss any legislation at all. It is
essential that you cite relevant authorities (cases) to support your reasoning in each answer.
6. Your work must be appropriately referenced, using footnotes. Where you state a legal principle
which comes from a case, you must provide a citation to the relevant case. You are not expected to
read the cases themselves: as long as a case is summarised in the textbook, you can cite the case
itself. If you are stating a legal principle that is covered in the textbook or lecture and which does not
have a relevant case provided in the textbook, you should cite the textbook. You are not expected to
use any materials beyond the lectures and the set textbook. But if you do, you must provide
appropriate citations. No bibliography is required.
7. Your assignment must be 1,500 words or fewer, excluding all footnotes. This word limit is strict.
You must state the word count on the front page of your assignment. (If you fail to provide this, the
examiner will be forced to estimate the word count, and this may lead to penalties.)
8. You must also state the details of your seminar on the front page of your assignment. This
includes the day and time and location of your seminar, and the name of your seminar leader.
9. Assignment submission is electronic only, via the link on LMS: the link is accessible from the same
folder where you downloaded this document. Do not email your assignment to your tutor or the
lecturer. Your assignment will not be marked unless and until you have completed electronic
submission.
10. You must not plagiarise. To avoid plagiarism, make sure you acknowledge all your sources with
appropriate citations. You may discuss the questions with other students, but all written work must
be your own: do not show anyone your written work for this assignment, and do not view anyone
else’s. Academic misconduct is taken extremely seriously at La Trobe University. Further information
about plagiarism and academic misconduct is provided in the Subject Learning Guide.
11. Further information about policies on late submission, applying for an extension, etc. is available
on the LMS, and in your Subject Learning Guide.
Mikaela owns and runs a cake shop, and often sources ingredients from a business called Tower
Flours. One day, she calls Tower Flours to ask about their almond flour. She speaks with Ricky:
‘Lots of my clients request gluten-free cakes’, says Mikaela. ‘Is your almond flour gluten-free?’
‘Yes, of course,’ Ricky replies.
Mikaela agrees to order 40 kilograms of almond flour, and shortly after the conversation, Ricky
emails her an online order form with the type and amount of flour already entered. Mikaela fills out
the rest of the online order form and submits it. The order form does not mention anything about
the almond flour being gluten-free.
Mikaela uses the almond flour to bake a cake for the wedding of Dan and Jacob. Dan, who has
coeliac disease, has a severe reaction to the cake. It turns out that the almond flour used in the cake
was not gluten-free, as it had been processed and packaged with machinery also used for wheat
flour.
Dan and Jacob had not specifically requested a gluten-free cake when dealing with Mikaela, but they
had asked for almond flour. They now want to sue her for breach of contract.
1. Was it a term of the contract between Mikaela and Tower Flours that the almond flour
would be gluten free? (5 marks)
2. Was there an implied term in Dan and Jacob’s contract with Mikaela, that their wedding
cake would be gluten-free? (6 marks)
After the complaint about Dan and Jacob’s cake, Mikaela makes a sign to put up in her cake shop.
She positions the sign on the wall next to the counter where customers are served.
Kimiko comes to Mikaela’s shop to place an order for a cake. They discuss all of the details: Kimiko
orders a round, chocolate cake covered with blue and purple coloured icing. While finalising the
order Kimiko sees the sign, which says: We accept no responsibility for breach of any warranty.
Kimiko comes back a week later to collect and pay for the cake. After leaving with the cake Kimiko
discovers that it has blue and green icing. This makes it inappropriate for the function she was
planning to use it for – a sports team celebration. Kimiko wants to complain to Mikaela but isn’t sure
whether or not the sign prevents her from doing so.
3. Was the icing colour a condition or a warranty of the contract? (3 marks)
4. Is Mikaela still responsible for the icing being the wrong colour on Kimiko’s cake?
(6 marks)
