SYLLABUS

COURSE K48
SUBJECT: LEGAL REASONING
AND LEGAL METHODOLOGY

FIRST SEMESTER – ACADEMIC YEAR 2023 – 2024

(Internal use only)
0
 TABLE OF CONTENT

Content Page

PART 1. OUTLINE OF THE SUBJECT 1

Subject tile 1

Objectives of the subject 1

Methods of teaching 2

Methods of evaluation 2

Detailed outline of the course

Chapter 1 4

Chapter 2 6

Chapter 3 8

Chapter 4 13

Chapter 5 16

PART 2: QUESTIONS AND CASES 22

PART 3: BIBLIOGRAPHY 29

1
SUPPORTIVE STUDYING MATERIAL FOR THE SUBJECT: LEGAL REASONING
AND LEGAL METHODOLOGY
FOR HIGH-QUALITY STUDENTS IN THE FIRST SEMESTER
ACADEMIC YEAR 2022 – 2023
-------------------
PART I: OUTLINE OF THE SUBJECT
1. Title of the subject: Legal reasoning and legal methodology
2. Number of credits: 02 credits (20 hours for lectures and 20 hours for discussions and
presentations).
3. Objectives of the subject:
3.1. Objectives of knowledge
After studying the subject, students shall:

− understand the narrow and broad meanings of legal reasoning and skills needed for
legal reasoning
− understand and be able to analyse the art of legal reasoning and the technique of
reading texts about law and text of the law
− analyse and apply different legal writing styles
− construct and master legal argument, including written and oral arguments.
3.2. Objectives of skills
After studying this subject, students shall have the capacity:

− To identify issues in legal cases

− To de-construct legal arguments to point out their strengths and weaknesses
− To present legal arguments effectively
3.3. Objectives of attitudes
The subject is designed to help students having positive attitudes towards legal
reasoning and legal methodology, paying attention on how legal arguments are
constructed and whether they are effective.
4. Method of teaching
The methods used in delivering the subject include giving lectures, presentation, case
study, and group discussion.

2
5. Methods of evaluation
- 40 % of the final mark for assignments
- 60% of the final mark for examination in the end of the course.
6. The detailed outline of the course

3
 CHAPTER 1: INTRODUCTION TO LEGAL REASONING
Time: 8 theoretical hours and 6 discussion and presentation hours
I. THE STUDY OF LEGAL REASONING
1. Concept

− Broad sense: “The psychological processes undergone by judges in reaching decisions

in the cases before them”

− Narrow sense: “The arguments that judge gives, frequently in written form, in support
of the decisions they render”.
2. Purpose of legal reasoning study
The study of legal reasoning in the broad sense = the study of judicial psychology and
biography → to know judges and their psychology and to understand what impacts judges’
decisions
The study of legal reasoning in the narrow sense = an inquiry into the “logic” of judicial
decision making:

− kinds of arguments judges give

− the relationship between the reasons and the decisions, the adequacy of these reasons
as support for the decisions

− Applying this knowledge in one’s career

3. Skills required for legal reasoning study
a. Critical thinking skills
Critical thinking skills include:

− Reasoning logically

− The ability to locate underlying assumptions (searching for hidden assumptions;

justifying your own assumptions; judging the rationality of those assumptions; testing
the accuracy of those assumptions).

− Analystic and argument skills

b. General and specific language skills.
c. Intellectual and technical skills
4
− How to locate primary and secondary sources of materials
Primary source: Direct evidences or original sources of information created at the time
the event occurred
Secondary source: Derived from primary source written about primary sources to
analyze, interpret, and discuss information about the primary source
Comparing differences between primary and secondary sources:

Primary source Secondary source

▪ Created at the time of an event, or ▪ Created after event; sometimes a

very soon after. long time after something
▪ Created by someone who saw or happened.
heard an event themselves. ▪ Expresses an opinion or an
argument about a past event.
▪ Often uses primary sources as
examples.

Notes: To evaluate if the source is primary or secondary → check the context and
purpose of its use.
Analysing different types of material used in legal context regarding their types of
sources.

− How to read texts of the law and the texts about law

− How to write (using references, summaries, notes)

d. Argument construction
Discuss and inquire into an overview of:

− argument construction

− argument evaluation

− argument interpretation

− argument deconstruction.
II. THE ART OF LEGAL REASONING

5
1. The language as a professional tool in legal reasoning

− The role of language in legal reasoning: a professional tool

− The characteristics of legal language

+ ordinary words with specialized meaning (law suit)

+ Latin words and phrases (mens rea – guilty mind, actus reus - conduct)

+ Norman French (per se)

+ Claims that words can be used with precision

+ Ritualized word forms (ex: the truth, the whole truth and nothing but the truth)

+ Use of words with flexible meanings (reasonable)

2. Predictive writing and persuasive writing
a. Predictive writing
Two purposes of predictive writing: to advise clients and to plan litigation
Functions of predictive writing:

− predicts the outcome of a legal question by analyzing the authorities governing the
question and the relevant facts that gave rise to the legal question

− explains and applies the authorities in predicting an outcome, and ends with advice
and recommendations

− serves as record of the research done for a given legal question

b. Persuasive writing
Persuasive writing = the most rhetorically stylized, framed as an argument and argues
for one approach to resolving the legal matter and does not present a neutral analysis
Functions of predictive writing:

− to persuade a deciding authority to favorably decide the dispute for the author's
client, usually submitted to judges (but also to mediators, arbitrators, and others)

− to persuade the dispute's opposing party.

3. Planning, rewriting, and work habits

− Well organized
6
− Complete

− Clear

− Concise

− Forceful

− Accurate and precise…

III. EFFECTIVE LEGAL WRITING
Criteria for effective legal writing:
1. Clarify and vividness:
This criteria requires:

− find the “right” word in order to present the ideas straightforward, and avoid the
word that blurs meaning.

− Figure out exactly what should be said and then say it precisely (be confident of
writing and reduce fear).
2. Conciseness
Concise writing is by nature clear and short.
The typical readers of legal reasoning have no time to spare, therefore, they will either
resent inflated verbiage or will simply refuse to read it.
3. Forcefulness
Forceful writing leads the reader through ideas by specifying their relationships with
one another and by identifying the ideas that are most important or completing.
Relationships between ideas can be made clear through transitional words and phrases,
and through demonstrative sentence structure.
Note that:

− Some transitional words and phrases are stronger than others.

− Be careful to select those that accurately represent the relationship at hand and that
claim neither too little nor too much.
4. Punctuation and other rules of grammar

7
IV. PARAGRAPHING
1. Organization in writing and paragraphing
Why should we divide our writing into paragraphs?
Two goals of paragraphing:

− break your material up into digestible chunks.

− to help you discipline yourself to confront and develop each theme inherent in the
material.
2. Thesis sentences, topic sentences, and transition sentences
2.1 Thesis sentence

− a sentence (or two) that states what you are going to do in your document as a whole.

− a kind of a signpost – something that tells you where to go - or a map that shows the
reader what direction your paragraphs will take.

− Normally comes at the end of the introduction

2.2 Topic sentence

− A topic sentence is often the first sentence in a paragraph.

− The topic sentence should identify the main idea and point of the paragraph, should
not be too general or too specific.

− A good topic sentence is concise and emphatic. It is no longer than the idea requires,
and it stresses the important word or phrase.
− The supporting details in the paragraph will develop or explain the topic sentence.
2.3 Transition sentence
Transitions are the sentences or words that allow readers to follow the flow of an argument.
Transitions help you to achieve your goals by establishing logical connections between
sentences, paragraphs, and sections of your papers.
CHAPTER 2: READING TEXTS ABOUT LAW AND TEXT OF THE LAW
Time: 4 theoretical hours and 4 discussion (practicing) hours
A. READING TEXTS ABOUT LAW
I. PREPARATION PRIOR TO READING
8
1. Locating texts
2. Ascertaining purpose for reading

− Why am I reading this text?

− What do I hope to get out of it?

Prediction of use and content of texts:

− This involves a consideration of what the writer is saying. This can be judged from
the subject matter and the title.
− The very act of choosing a text involves prediction; that the text is relevant and
answer questions that you have in your mind.
II. METHODS OF READING
1. Skimming
Read very quickly and generally through a text noting:
2. Scanning

Unlike the general skim through, scanning involves quickly looking for specific
words, phrases or information.

3. In-depth focused reading

Reading will allow attention to be given to secondary or subsidiary points in the text.
Here, the reading is slower and careful, check unfamiliar vocabulary.

Some words and phrases become clear as more text is read.

Note the type of langue used, it presents certain meanings for evaluating the texts.

III. UNDERSTANDING WHAT IS BEING READ

1. Identifying main ideas
Many main ideas will have been discovered on a first skimming.
A second reading begins the process of identifying the main points made by the
writer. This aids in the acquisition of a deeper understanding of the argument
presented in the text.
2. Identifying subsidiary ideas
9
 As the main points are identified, it is possible to organize the information and
classify secondary, subsidiary points.
3. Identifying overall text organization
Every writer has a different way of organizing, classifying and structuring their work.
This needs to be ascertained by any reader who wishes to break into the text
successfully.

Identifying whether the writer is outlining an area:

− Discussing a specific problem.

− Proposing a solution to a problem.

− Comparing and contrasting ideas.

− Speaking of the present, future or the past.

IV. EVALUATING WHAT YOU ARE READING
1. Ascertaining the purpose of the writer

− This is crucial

− Does the writer want to inform you about something or try to persuade you of the
correctness of a particular point of view?

− Often a writer will seek to both inform and persuade.

2. Ascertaining the argument(s) of the writer
Some texts are complex not because they use particularly difficult words or
arguments but because, in order to understand the full detail of the writer’s position,
extensive knowledge of the other areas within or outside the particular discipline
will be required.
3. Ascertaining the attitude of the writer

− Writers are usually biased towards a certain view in their writing, although on
occasion a writer may be neutral.

− You must be able to gain skill in identifying a writer’s attitude to the ideas he or
she is discussing.

10
 − You must at least know whether the writer is neutral or biased.

B. READING TEXT OF THE LAW

There are several rules for reading texts of the law.

1. The eiusden generis rule

Statutes often list a number of specific things and end the list with more general words.

In that case the general words are to be limited in their meaning to other things of the
same kind as the specific items which precede them.

2. The in pari materia rule

The court may consider other legislation dealing with the same matter in order to interpret
the statute in question.

3. The noscitur a sociis rule

This rule allows the meaning of a word to be discovered by the court considering other
words.

4. The expressio unuis exclusio alterius rule

If the legislation specifically states what it affects, then anything else is not affected by it.

11
12
V. EXERCISE
Reading: “The European Union Belongs to its Citizens: Three Immodest Proposals’
(1997) 22 EL REV 150-56
CHAPTER 3: LEGAL ARGUMENT
Time: 4 theoretical hours and 4 discussion hours
I. DEFINITION OF ARGUMENT
An argument is a series of statements, some backed by evidence, some not, that are
purposely presented in order to prove or disprove a given position.
Argument consists of two statements of which one (the premise) is claimed to be a
reason for accepting the other (the conclusion).
→ The term “argument” is sometimes used to refer to just the reason or set of reasons
for a particular statement.
II. TYPES OF ARGUMENTS: DEDUCTIVE AND INDUCTIVE
ARGUMENTS
1. Deductive Arguments
Deductive reasoning begins with a general proposition and ends with either a general or
particular proposition.
− Deductive reasoning begins with a general proposition and ends with a general
proposition (this “general-to-general” reasoning is not used in legal context).

− Deductive reasoning begins with a general proposition and ends with a particular
proposition (“categorial syllogism”)
2. Inductive Arguments
Inductive reasoning begins with a particular proposition and ends either a general or
particular proposition.

− Inductive reasoning begins with a particular proposition and ends with a general
proposition (reasoning by generalization).
− Inductive reasoning begins with a particular proposition and ends with a
particular proposition (reasoning by analogy).
III. LEGAL ARGUMENTS

13
 DEDUCTIVE From general to general: not From general to particular
ARGUMENTS used in legal argument. (categorial syllogism)
Applies legal principles to a
particular case

INDUCTIVE From particular to general From particular to particular

ARGUMENTS (generalization) (analogy)
Create appellate case legal Select relevant legal principles to
principles (This type of be applied.
arguments is popularly used
in the common law system. In
Vietnam, due to the features
of continental law system
which is characterized by
written law, this type of
arguments is not popular.)

View different examples for various types of reasoning:

1. Inductive Generalization (Particular-To-General Reasoning)
2. Inductive analogy (particular-to-particular reasoning)
3. Deduction (General- To- Particular Reasoning)
IV. THE VALID ARGUMENT
− A sound argument is a valid argument with true premises.
− You make a sound courtroom argument when your syllogism is logically valid
and you introduce evidence sufficient to prove its premises.
− An unsound argument is an argument which has one or more false premises, or
is invalid, or both.
V. THE IRAC FORMULA IN LEGAL REASONING
Overview

14
 Issue what facts and circumstances brought these parties to the court (the
subject matter)

Rule what is the governing law for the issue (the major premise)

Analysis Does the rule apply to these unique facts (the minor premise)

Conclusion How does the court’s holding modify the rule of law (the conclusion)

1. Issue
“The facts of a case suggest an issue”
− The key to issue spotting is being able to identify which facts raise which issues.
− The elimination or addition of one fact (such as time of day …) can eliminate or add
issues to a case thereby raising an entirely different rule of law.
2. Rule
“The issue is covered by a rule of law”
✓ The rule is the law.
✓ The rule could be common law (that was developed by the courts) or a statutory law
that was passed by the legislature.
✓ The overall question regarding the discover of rules is that what elements of the rule
must be proven in order for the rule to hold true.
3. Analysis
“Compare the facts to the rule to form the analysis”
There are lots of facts that make up the client’s story. For the purpose of legal analysis,
we look for “material” facts. These are facts that fit the elements of the rule.
For every relevant fact:

− It is necessary to ask whether the fact helps to prove or disprove the rule.

− If a rule requires that a certain circumstance is present in order for the rule to apply
→ the absence of that circumstance helps us reach the conclusion that the rule does
not apply.
4. Conclusion

15
 − The conclusion is the shortest part of equation.
− It can be simple “yes” or “no” as to whether the rule applies to a set of facts.
CHAPTER 4: MEMORANDA AND BRIEFS: BUILDING A COMPLETE
DOCUMENTS
Time: 2 theoretical hours and 2 discussion (practice hours)
I. WRITING MEMORANDA
1. Introduction
2. Office memorandum format
− A Memorandum heading
− A Question presented
− A Brief answer
− A Statement of facts
− A Discussion
− A Conclusion
− The author's signature
3. Persuasive memorandum format

− Cover page

− Table of contents

− Table of authorities

− Preliminary statement

− Question presented

− Statement of the case

− Argument, broken up by point headings

− Conclusion

− Indorsement
II. FACT STATEMENTS: OBJECTIVE AND PERSUASIVE
1. Fact statements generally
2. Techniques for persuasively stating facts
16
 Techniques for persuasively stating facts:

− Reflect your theory throughout the statement.

− Breath life into the fact by telling a revealing story about people.
− Without mentioning the elements of the controlling rule or rules, focus on the facts
that would satisfy or negate those elements.
− Emphasize favorable facts.
− Neutralize the unfavorable facts that must be reported.
− Start with a punch.
− Humanize your client.
3. Fact Ethics
Pay attention on fact ethics, facts must describe the truth.
4. The record
Facts need to be supported by proof (record).
III. QUESTION PRESENTED: OBJECTIVE AND PERSUASIVE
1. The role and structure of a question presented
2. How a persuasive question presented persuades
3. How to evaluate your questions presented for persuasiveness

− The issue must be stated in terms of the facts of the case.

− The statement must be eliminate all unnecessary detail.

− It must be readily comprehensible on first reading

− It must eschew self-evident conclusion.

− It should be so stated that the opponent has no choice but to accept it as an accurate
statement of the question.

− It should be subtly persuasive.

IV. PERSUASIVE POINT HEADINGS AND SUB-HEADINGS
1. How points and headings work
2. How to evaluate your headings and sub-heading for effectiveness

17
− When collected in the Table of contents, the headings and sub-headings should lay
out a complete and persuasive outline or your theory.

− Each point should be independent, complete and free-standing ground for a ruling
in your favor.
− Headings and sub-headings should not assume information that a judge would lack
when reading the Table of content.
− The sub-headings should be neither too many nor too few. Each heading and sub-
heading should be a single sentence that can be immediately understood.
− Each point heading should identify the ruling you want.
− The controlling rules should be identified in the headings or sub-headings.
− The one, two, or three most determinative facts should at least be alluded to in
either headings or sub-headings.
− Headings and sub-headings should be forceful and argumentative.
V. APPELLATE PRACTICE
1. Introduction to appeals
2. The life cycle of an appeal
3. The roles of the brief and of oral argument
4. Limitations on appellate review
5. Standards of review
VI. WRITING THE APPELLATE BRIEF
1. Appellate brief format
2. How judges read briefs
3. Developing a theory of the appeal
4. Handling the standard of review and the procedural posture below
5. The process of writing a brief
6. Ethics on appeal
CHAPTER 5: ORAL ARGUMENT
Time: 2 theoretical hours and 4 discussion (role play hours)
I. THREE GOALS AT ORAL ARGUMENT
18
 − To engage the judge’s attention by getting them interested in the case and
motivated to rule in your favour.
− to focus the judge’s attention on the few aspects of the case that are most
determinative.
− to access to the court’s thinking.
What are differences between oral and written arguments?

Criteria Oral Written

Nature Multiple-way active One-way passive

communication communication

Goals - Overall goals are the same

- Specific goals are different?

Language More general More professional

Content - Overview - detailed

- Not detailed (determinative
points)
- Respond to the questions

Supportive - Body language Not available

means to - Facial expression (eye
persuade contacts)
- Tones
- Attitude
- Appearance (clothing)

19
 Flexibility High Low

Re-check Impossible possible

II. STRUCTURE OF AN ORAL ARGUMENT

1. Opening Statement
2. Developing argument
3. Closing Argument
III. DELIVERY, AFFECT AND STYLE
1. Tone and attitude
The most effective way to present arguments is in a tone of what has been called
“respectful intellectual equality”.
Speak loudly enough that the judges do not have to strain to hear you.
Use the tone and volume of your voice to emphasize the more important things you say.
2. Gesture and movement
Look straight at the judges – preferably with eye contact – throughout the argument.

Stand up straight and do not distract the court with restless or anxious movement.

3. Avoid multitudes of detail

Unless asked, avoid multitudes of detail in discussing authority.
Oral argument works best when focuses on the big ideas.
4. Know the record thoroughly
Know the record thoroughly, use it to its full advantage and do not discuss “facts”
outside the record.
▪ Concentrate on the few facts that are most determinative, and mention along the way
one or two facts that most bring the story to life.
▪ Some facts do not logically have legal significance, but they help the judges “see”
the story and put the case into a realistic perspective.

20
IV. FORMALITIES AND CUSTOMS OF THE COURTROOM
Courts are public institutions belonging to the people. However, courts are also
bureaucratic institutions with very heavy caseloads.
Representing in court can be like traveling to a different country. Courtrooms, like
nations, have unique rules and customs and even a somewhat different language. Just as
with traveling, a successful courtroom experience depends on knowing where you want
to go, what the rules are during your journey and what to expect when you get to your
destination.
Dress not merely for business, but in conservative clothing that conveys the impression
that you are a careful and reliable professional.
Stand at the lectern though out your argument. Do not stroll out from behind it unless
you must go to your materials in order to answer a question.
In court, lawyers do not speak to each other. They speak only to the bench and – when
the bench gives permission – to witnesses (and juries if it is a common law system).
V. PREPARATION FOR ORAL ARGUMENT

21
 PART 2: QUESTIONS AND CASES
I. Questions
1. Why we should study legal reasoning?
2. What is the IRAC formula in legal reasoning?
3. How to summary a case?
4. How to define law applied in a case?
5. What are the questions to ask when reading a case?
6. How do you prepare an oral argument?
7. What are deductive arguments?
8. What are inductive arguments?
9. What is predictive writing?
10. What is Persuasive writing?
11. What is the difference between predictive and persuasive writing?
12. How to read texts about law effectively?
13. What are methods of reading texts about law?
14. How to evaluate what you are reading?
15. What is legal argument?
16. What are skills for argument?
17. What is the structure of an oral argument?
18. What are differences between written and oral argument?
19. What are the role and structure of a question presented?
20. How a persuasive question presented persuades?
21. How to evaluate your questions presented for persuasiveness?
22. How points and headings work?
23. How to evaluate your headings and sub-heading for effectiveness?
24. True or False statements (explanation needed)

22
 a. The facts of a case suggest an issue
b. Critical thinking is the only skills necessary for the study of legal reasoning
25. True or False statements (explanation needed)
a. In the narrow sense, legal reasoning is the arguments that judge give, frequently
in written form, in support of the decisions they render.
b. A thesis statement is a sentence (or two) that states what you are going to do in
your essay.
II. Topics for discussion:
1. Critical thinking skills
2. Predictive writing
3. Persuasive writing
4. Role of language in legal profession
5. Primary and secondary sources
6. General and specific language skills
7. Types of argument
8. Types of argument in legal profession
9. IRAC formula in legal argument
10. Effective oral argument
11. Writing memoranda
12. Fact statements: objective and persuasive
13. Question presented: objective and persuasive
14. Appellate practice
15. Writing the appellate brief
III. Case analysis
1. “The European Union Belongs to its Citizens: Three Immodest Proposals’ (1997)
22 EL REV 150-56 (case will be provided)
Stage 1: Preparation prior to reading

23
Identify your reading intention with the following questions:
- Why am I reading this text?
- What do I hope to get out of this?
- What does the title of the article suggest?
Stage 2: Methods of reading
Reading very quickly and general through the text noting:
- Publication date: 1997. The date gives a context to the article. Today you are reading
this many years later it was written
- Headings and sub-headings:
1) Introduction
2) Proposal 1: The European Legislative Ballot
3) Proposal 2: Lexcalibur – the European Public Square
4) Proposal: limits to growth
- Author details
- The Introduction (details are given)
Stage 3: Understanding what is being read
- Guessing words you do not know
- Identifying main ideas
- Identifying subsidiary ideas
- Identifying overall text organization
2. Case on oral argument

− Read the following extraction and analyze the structure of the argument?

− Which part of the argument summarizes the facts of the case?

− Which part of the argument states the rule applicable to the case?

24
Your Honors, I am Clyde Farnsworth, representing Merritt Bressnahan, the appellant here
and the defendant below. This is an appeal from a criminal conviction
Ms. Bresnahan suffers from a medical condition known as gender dysphoria syndrome.
A person with this condition is psychologically of one gender but was born with the
reproductive organs of the other gender. Psychotherapy has been shown to have no effect
on this disorder. But the suffering it causes is so profound that clinics at leading hospitals
must resort to sex reassignment surgery to alleviate the condition. And wise medical
practice requires that before so radical a step, the patient must dress and live as person of
the psychological gender for a long period.
On her doctor’s orders, Ms. Bresnahan was so dressed when she was arrested for violating
section 240.35 of the Penal law, which punishes anyone who – in the words of the statute
– is “in any way disguised by unusual or unnatural attire” and “loiters, remains, or
congregates in a public place” with others similarly attired. When arrested, Ms.
Bresnahan was walking to lunch in the financial district of Manhattan with two other
people who suffer from the same disease.
By appropriate motions in the trial court, Ms. Bresnahan sought dismissal of the charge
on the grounds that her conduct could not violate the statute, and that, if it did, the statute
would invade, among other things, her constitutional right to privacy. Even though the
Prosecutor concedes that Ms. Bresnahan was following her doctor’s orders according to
accepted medical treatment, the trial court denied the motions and convicted her.
The question before this court are whether the legislature really meant to punish people
like Ms. Bresnahan, and, if the legislature did, whether her constitutional right to privacy
nevertheless protects her freedom to choose her own clothing.
The legislature did not intend to restrain medical treatment of a person under legal
prescription… Thus, section 240.35 was never intended to punish a patient for complying
with an accepted medical treatment.
The second question before the Court is whether section 240.35, if it has the meaning
urged by the Prosecutor, violates Ms. Bresnahan’s constitutional right to privacy…
Therefore, the judgement below should be reversed because…
Or: In conclusion, Ms. Bresnahan shall be released from the charge because…

25
 3. Case for Predictive writing
Case Summary: Bob hires Attorney Sally because he wants to sue his neighbor John.
John's dog has bitten Bob, causing injuries sufficient for Bob to seek treatment. Bob now
has medical bills totaling $800, and he wants John to pay. After the initial interview,
Attorney Sally and/or her crack paralegal will find the law applicable to the situation, based
on jurisdiction. That is, she will answer the question, 'What is the law that applies in this
case?' Then she will research the history of cases in that jurisdiction which used that law as
basis for decision. By comparing the client's fact pattern to the most similar, on-point cases,
she will show logically how the client's case is likely to fare before a judge. From this,
Attorney Sally can easily determine Bob's chances of prevailing in court against John. Keep
in mind that John's attorney will prepare a similar memorandum based on the same law &
cases which will be more or less identical in substance to the one Attorney Sally prepares.
Every lawyer and paralegal must learn this writing style in order to effectively work in the
legal profession.
(http://www.webanswers.com/legal/attorneys-paralegals/what-is-the-significance-of-
predictive-writing-4092ea)
Issue: What is the significance of predictive writing?
4. Case 4: Loman's Fashions - Breach of contract claim
Loman's Fashions, a retailer of women's and men's outerwear, distributed a circular in
November advertising a manufacturer's closeout of designer women's leather coats for
$59.99, coats that regularly sold for $300.00. The ad announced that the store would open
at 7 a.m. on Friday, November 30, and stated that the "early bird catches the savings!" After
about fifteen minutes, all the advertised coats had been sold. At 7:30 a.m., a shopper
inquired about the coats and was told that there were none left, but she complained that
Loman's was obligated to sell her a comparably valued designer leather coat at the
advertised price. The store manager declined, and the shopper filed a complaint in Small
Claims Court, alleging that Loman's had breached a contract by failing to sell the advertised
leather coats at the advertised price.
Loman's president, Willi Loman, stated that the store occasionally gives rain checks
when it is possible to replenish supplies of an item that Loman's can purchase at a discount.
In this case, the manufacturer had discontinued the line of coats and Loman's was not
prepared to sell other, designer leather coats at such a drastic markdown. Loman expressed

26
concern that, if the shopper's interpretation were to hold, Loman's would have to reconsider
its marketing strategies; she had assumed that the advertised terms applied while supplies
lasted. She asks whether Loman's would have any contractual obligation under these
circumstances.
5. Case Summary: Carlill v Carbolic Smoke Ball Co Ltd (1892)
Mrs. Carlill made a retail purchase of one of the defendant’s medicinal products: the
‘Carbolic Smoke Ball’. It was supposed to prevent people who used it in a specified way
(three times a day for at least two weeks) from catching influenza. The company was very
confident about its product and placed an advertisement in a paper, The Pall Mall Gazette,
which praised the effectiveness of the smoke ball and promised to pay £100 (a huge sum of
money at that time) to:
... any person who contracts the increasing epidemic influenza, colds, or any disease caused
by taking cold, having used the ball three times daily for two weeks according to the printed
directions supplied with each ball.
The advertisement went on to explain that the company had deposited £1,000 with the
Alliance Bank, Regent Street, London as a sign of its sincerity in the matter. Any proper
plaintiffs could get their payment from that sum. On the faith of the advertisement, Mrs.
Carlill bought one of the balls at the chemists and used it as directed, but still caught the
‘flu’. She claimed £100 from the company, but was refused it, so she sued for breach of
contract.
6. Case Summary: Rex v Manley, 1 K.B. 529 (1933).
Facts: Manley made false allegations to the police that a man had taken her money after
hitting her. Manley was indicted and charged with committing an act tending to the public
mischief for making the false statement to the police and plead not guilty. Defendant argued
at trial that the indictment contained no offense known to law and that there was no case
for the jury to decide. The judge instructed the jury on the offense of public mischief and
that the offense in the indictment was a common law misdemeanor. Manley appealed her
conviction.
Issue: Is an act that prejudices the community indictable under the common law of crimes?
Holding and Rule: Yes. An act that prejudices the community is indictable under the
common law of crimes.

27
Committing an act tending to the public mischief is a misdemeanor. The court indicated
that guilt of this crime would be predicated on the fact that the defendant caused two officers
to devote their time to a nonexistent crime and that other members of the public who
answered the description of the nonexistent suspect were put at peril of suspicion and arrest.
This burden of proof was met.
Disposition: Affirmed.

7. Case study: Donoghue v. Stevenson (1932)

This famous case established the civil law tort of negligence and obliged manufacturers to
have a duty of care towards their customers. The events of the complaint took place in
Scotland in 1928, when Ms. May Donoghue was given a bottle of ginger beer, purchased
by a friend. The bottle was later discovered to contain a decomposing snail. Since the bottle
was not of clear glass, Donoghue was not aware of the snail until she had consumed most
of its contents. She later fell ill and was diagnosed with gastroenteritis by a doctor.
Donoghue subsequently took legal action against the manufacturer of the ginger beer,
Stevenson. She lodged a writ in the Court of Sessions (Scotland’s highest civil court)
seeking £500 damages.
Because her friend had purchased the drink, Donoghue could not sue on the basis that a
contract had been breached; her lawyers instead had to claim that Stevenson had a duty of
care to his consumers and that he had caused injury through negligence – an area of civil
law that was largely untested at that time. Stevenson’s lawyers challenged the action on the
basis that no precedents existed for such a claim. They referred to an earlier action, Mullen
v. AG Barr, where a dead mouse was found in a bottle of soft drink; judges in this case
dismissed it due to the lack of precedent. However Donoghue was later granted leave to
appeal to the House of Lords, which then had the judicial authority to hear appellate cases.
The leading judgement, delivered by Lord Atkin in 1932, established that Stevenson should
be responsible for the well-being of individuals who consume his products, given that they
could not be inspected. The case was returned to the original court; Stevenson died before
the case was finalised and Donoghue was awarded a reduced amount of damages from his
estate.

28
Reading materials
Criminal liabilities in harassment, theft, assault and sexual assault

Facts

Matthew and Louise had been going out for six months but broke up a week ago. Since then,
Matthew has bombarded Louise with about fifty text messages a day, sometimes begging her to
take him back and others threatening to harm her family unless she gives him another chance.
Louise, who suffers from a severe anxiety disorder, becomes extremely stressed as a result and
refuses to eat or leave the house. She starts to self-harm so her mother, Hannah, insists that she
sees a doctor who prescribes anti-depressants.

Louise’s brother, David, comes home from university in order to confront Matthew about his
behaviour but Matthew avoids him. David knows that Matthew has just joined a prestigious gym
in town so he poses as a prospective member, hoping to bump into Matthew. One of the
membership team, Sasha, offers David a tour of the facilities but he says that he would rather
look around on his own. She agrees and gives David a voucher for a free latte and cake in the
hope that he will take out a membership. David is sitting in the coffee shop drinking his latte
when Matthew comes up behind him and puts a hand on his shoulder saying ‘what you are doing
here – you’re not a member’. Startled, David jumps up and spills scalding hot tea down the front
of his trousers.

David lunges at Matthew who dodges and runs away. Matthew decides to hide in the ladies’
changing rooms, reasoning that David will not look for him there. Desperate not to be caught,
Matthew takes off his clothes, wraps himself in a towel that he finds on a bench and goes into the
mixed-sex sauna that is situated between the ladies’ and men’s changing rooms, knowing that it
is dimly lit so that David will not see him if looks in. The sauna is empty apart from Jenna, who
starts flirting with Matthew. She drops her towel and invites him to touch her. They kiss
passionately and Matthew fondles her breasts but she pushes him away when he tries to take
things further. Matthew asks what is wrong and she explains that she just wanted to have her first
sexual experience so that she could tell her friends at school. He is horrified to find that she is 13
as he’d assumed that she was over 18 as the gym is open to adult members only but Jenna
explains that her mother works at the gym and that she often gets to use the facilities when her
mother is working. Matthew rushes into the men’s changing room and rummages through the
lockers looking for some clothes so that he can get out of the gym and go home. He finds a
tracksuit and a baseball cap and puts them on. Once he is outside the gym, he throws the cap in a
rubbish bin.

On the way home, Matthew stops to fill his car up with petrol but, as he goes into the garage to
pay, he realises that his wallet is still in his jacket at the gym. He explains the situation to the
cashier who says that he can return with the money later as long he leaves his name and address.
Matthew writes David’s name and address on the form he is given by the cashier. As Matthew
gets back in the car, he realises that there is a twenty pound note in the pocket of the tracksuit he
is wearing so he stops at the florist to buy some flowers for Louise. He goes back to the gym and
manages to sneak into the ladies’ changing room and collect his clothes. He changes into them,
puts twenty pounds from his wallet into the tracksuit pocket and returns it to the men’s changing
room. On his way out of the gym, he is finally confronted by David who pushes him in the chest.
Matthew stumbles trying to keep his balance but puts his hand through the plate glass window in
29
reception, severing an artery. Matthew is rushed to hospital and has emergency surgery which
saves his hand but he is left with very little feeling and restricted movement. Louise visits him in
hospital and they are reconciled.

Issues: Any criminal liability that arises on these facts?

Rules and Analysis

On analysis of the facts provided, both Matthew and David would be guilty of various offences.
Each of these will be addressed in in turn.

Harassment

By virtue of The Protection from Harassment Act 1997 Section 4, a person will be guilty of
putting people in fear of violence if they undertake a course of conduct which causes another
person to fear that violence will be used against them. If it is determined that a reasonable
individual would also believe that the same conduct would cause the victim to fear violence
against them then it will be presumed that the defendant ought to have known this. Section 4 (a)
(1) (b) (ii) covers an additional offence of stalking involving a fear of violence or serious alarm or
distress. Such conduct occurs when the defendant has on two or more occasions caused another
to fear violence or serious alarm or distress against them that has a substantial adverse effect on
their day to day activities.[1] The definition of substantial adverse effect is noted in the Home
Office guidelines and stipulates physical and ill mental health as one potential effect.[2] Matthews
conduct would fall within the remit of this act as he is making threats via text message towards
Louise and her family which has resulted in a deterioration in Louise’s mental health, as she
already suffered from an anxiety disorder, a condition that Matthew should know would make her
more vulnerable. These text messages have occurred on more than two occasions, as it is
stipulated within the facts of the case that Matthew has ‘bombarded’ Louise with up to fifty text
messages a day.

In order to prove that the defendant had committed the offence of harassment the defendant’s
behaviour must be oppressive and a leading case in this area is that of R v Curtis.[3] On initially
hearing the case, Judge Heath directed the jury to,

Bear in mind the length of time between each incident and that the fewer the number of incidents
and the longer between them, the less likely it will be that they amount to a course of conduct.
You must all agree upon the incidents which amount to the course of conduct if you are sure that
there was one.[4]

Upon appeal of the conviction the court revisited the two limbs of S4. The first limb is the
defendants conduct causes the victim to fear that violence will be used against them and such
conduct has occurred on at least two occassions and the second limb is that if a reasonable person
was in possession of the same information, they would think that the same conduct would cause
fear. It was concluded that the judge had provided a lack of direction on the elements of the
offence to the jury.[5] The six incidents of alleged harassment took place over a period of 9
months and were not linked in order to create a course of conduct as specified in the act and the
court concluded that the defendant’s behaviour would not be considered harassment within the
meaning of the act. By examining the Court of Appeals reasoning, Matthews conduct would
30
amount to harassment as he has sent a large number of text messages every day for a week, which
are linked in their content, along with Louise’s preexisting anxiety disorder which would mean
both limbs of S4 would be satisfied.

Sexual Assault

In compliance with the Sexual Offences Act 2003 Section 9 (1);

A person aged 18 or over commits an offence if –

1. he intentionally touches another person,

2. the touching is sexual.

It is irrelevant whether the person under 16 consented to the touching, as in this case where Jenna
encourages Matthews’s behaviour.[6]Therefore in Matthews case the court will not consider the
fact that Jenna invited Matthew to touch her. In the case of R v Davies[7] the facts are as follows:
the defendant pleaded guilty to having sexual intercourse with the victim who was 13 years old
and had been drinking alcohol at the time, on the belief that she was 15 and had provided her
consent. The court noted this in their sentencing and the defendant was given a 16 month
sentence which was later reduced to 9 months. Therefore, with reference to the above case, the
court may factor in Matthews genuine belief that Jenna was over the age of 18 when deciding on
the appropriate sentence. His presumption could also have been considered reasonable as it is
grounded on the fact that only adult members are allowed in the gym, so upon seeing Jenna in the
gym he did not question her age.

Theft

Upon leaving the gym, Matthew takes a tracksuit from the men’s changing room and a cap which
he later discards in a dustbin. The Theft Act 1968 Section 1 (1) states that an individual will be
guilty of the crime of theft if they dishonestly appropriate property belonging to a person with the
intention of permanently depriving the other of it. The term dishonest is difficult to define as no
further explanation is provided within the act beyond the statement that a person may still be
considered dishonest notwithstanding a willingness to pay which is noted in Section 2 (2).
Determining the interpretation of dishonesty is a matter which is left to the jury. In this instance
Matthew returned the tracksuit to the men’s changing room along with the £20 thus, the matter
would fall under Section 6 (1) which covers borrowing in circumstances making it equivalent to
an outright taking.[8] In the case of R v Lloyd, Bhuee & Ali[9] the defendant, Lloyd, took films
from his place of work and passed them to Bhuee and Ali who copied them for distribution
purposes. The films were later returned to Lloyd who gave them back to his employer. On
hearing the appeal, Lord Lane made reference to the usability of the films upon their return to the
employer,

‘The goodness, the virtue, the practical value of the films to the owners has not gone out of the
article; That borrowing, it seems to us, was not for a period, or in such circumstances, as made it
equivalent to an outright taking or disposal. There was still virtue in the film.’[10]

Using the logic laid out by Lord Lane, Matthew returned the tracksuit within a short space of
time and its use as a tracksuit to the owner has not been diminished. If this is a stance that would
31
be taken by the court, Matthew may avoid prosecution for taking the tracksuit. However,
Matthew does discard the cap when he leaves the gym which would fulfil the definition of the
offence of theft as laid out in the act as his conduct is such that he has permanently deprived the
owner of the object by discarding of it. Matthew would therefore be guilty of theft of the cap.

Making off without payment

Section 3 of the Theft Act 1978 was brought into force in order to prevent defendants who
formed a dishonest intent not to pay for goods or services after being in receipt of them, avoiding
conviction under deception offences which was a major shortfall in the Theft Act 1968. Section 3
(1) states;

a person who, knowing that payment on the spot for any goods supplied or service done is
required or expected from him, dishonestly makes off without having paid as required or
expected and with intent to avoid payment of the amount due shall be guilty of an offence.

Section 3 covers such circumstances were an individual fails to pay for food at a restaurant, a
hotel bill, taxi fare or as in the current case, filling the car with petrol and driving away without
payment. In accordance with R v Allen[11] there must be an intent by the defendant to permanently
avoid repayment of the goods or services. In this case the defendant left a hotel after failing to
pay the bill. He later contacted the hotel saying that he was waiting on payment from a business
transaction and therefore had financial problems. He said that he would collect his belongings
and leave his passport in order to secure payment. On returning to the hotel the police were
waiting for him and he was arrested. On the initial judgement the court ruled that as there was a
failure to pay on the spot, or on the day that he defendant left the hotel, he was guilty. Upon
appeal the conviction was quashed as there needs to be an intent to permanently avoid payment:
to temporarily avoid payment was not covered within the act.[12]

In Matthews case the cashier asks him to return later that day with payment for the petrol and
requests that he leave his name and address. Matthew leaves David’s details instead of his own
which could constitute an intent to permanently withhold payment as he has dishonestly provided
false information and tried to avoid being contacted by the cashier.

Assault

David, approaches Matthew and pushes him which results in him falling into a window and
injuring his hand. As a direct result of David’s actions, Matthew must undergo emergency
surgery which saves his hand but leaves him with permanent injuries as he is unable to
experience full feeling in the injured hand. Section 20 and 18 of the Offences Against the Person
Act 1861 govern wounding and grievous bodily harm. Section 20 deals with offences of a less
serious nature whilst section 18 covers more serious offences which carry a higher sentence.

A section 20 offence takes place when a person unlawfully and maliciously wounds another
person or inflicts grievous bodily harm upon another person. Grievous bodily harm is defined as
harm that is serious in nature and includes the loss of sensory function. It is also a requirement of
the prosecution to show that the defendant intended or foresaw that some harm would come to
the victim. The importance of directing the jury to consider this element of the offence upon
determining guilt is shown in the case of R v Savage; DPP v Parmenter.[13]
32
There are two possible offences within Section 20, wounding and causing grievous bodily harm.
Wounding is defined as a break in the skin as highlighted in the case of Moriarty v Brookes.[14] Whilst
grievous bodily harm is a serious injury.

The case of DPP v Smith[15] addresses whether the defendants should have reasonably foreseen
that his actions would cause the other harm, which is an important element in determining
whether the defendant is guilty of causing grievous bodily harm. In the case of David the jury
would need to consider whether he foresaw that by pushing Matthew when he was in the vicinity
of a plate glass window, he would fall onto it causing extensive injuries. It should also be
considered that Matthew approached David in the gym and put a hand on his shoulder, after
which David spills his hot drink down his trousers as he is startled by Matthew.

Whilst it is more obvious that by David pushing Matthew he would be causing him harm, it
would be less likely that Matthew would have foreseen that David would have injured himself by
home placing a hand on his shoulder.

Conclusion

To conclude, each of the offences noted above have resulted as a direct consequence of both
Matthews and David’s conduct. In the case of Matthew the court may take into consideration
mitigating factors such as his belief that the girl he had touched in a sexual manner may be over
the age of 16 and that he had returned the stolen tracksuit to the owner along with the money.
This may mean that Matthew is given a reduced sentence. In the case of David, the extent of his
liability rests on whether the jury believe that he should have foreseen that by pushing Matthew
in the manner and location that he did, he would have caused him harm.

Footnotes

http://cps.gov.uk/legal/s-to/u/stalking_and_harassment/#ao3dc – No longer available –

[1]

accessed 15 September 2015

[2]
http://www.homeoffice.gov.uk/about-us/corporate-publications-strategy/home-office-circulars-
2012/018-2012 – No longer available – accessed 15 September 2015
[3]
[2010] EWCA 123
[4]
Ibid 22
[5]
Ibid 33
[6]
Jane Creaton, ‘Indecent assault’ (2006) Pol.J. 79 (1) 92-94
[7]
[2005] EWCA Crim 1363
[8]
David Cowley ‘intention permanently to deprive-effect of Section 6 (1) Theft Act 1968’ 1986
J.Crim. L 50 (1), 24-27
[9]
[1985] QB 829
33
[10]
Ibid 837
[11]
[1985] AC 1029 (HL)

‘Theft Act 1978, S3 – making off without payment from the “spot”‘ (1993) Crim .L.R. 708-
[12]

709
[13]
[1992] 1 A.C 699
[14]
[1834] EWHC Exch j79
[15]
[1961] AC 290

Harassment, Theft, Assault & Sexual Assault Scenario (lawteacher.net)

34
An example case study looking at the Sale of Goods Act, contracts and compensation in UK
law

Facts

Barry is a lecturer in Biology at Nottingham University, and a keen gardener with a large
orchard. Nogrow Ltd is a manufacturer of gardening requisites, and has a number of retail outlets
from which they sell their own products and those of other manufacturers. Last March Barry
visited one of these outlets to buy fertiliser. In the past, he had always used a top brand, but was
hoping to find something cheaper. He looked at several types of fertiliser on display, noted the
widely differing prices, and read the promotional leaflets. He studied the chemical composition of
each fertiliser, given in the leaflets. Some fertilisers required application to the roots, others to
leaves. He then sought the advice of the only available sales assistant, a youth who did not seem
to know much about the products on sale. The sales assistant recommended that Barry should buy
Nogrow Ltd’s ‘Apple Gro’, which, at £60, was considerably cheaper than all other brands in
stock. Barry decided to buy a sack of ‘Apple Gro’, and was given a sales invoice to sign, which
stated:

1. Nogrow Ltd agree to refund the purchase price paid for any goods which fail to conform
with commercially recognised standards of quality or with any description applied to them.
Any damages or compensation payable shall not exceed the purchase price of the goods
sold.
2. All claims against Nogrow Ltd must be made within 21 days of purchase.
3. Nogrow Ltd does not give any undertaking as to the suitability or fitness of goods purchased
for any particular purpose.

Barry paid for the fertiliser and signed the invoice without reading it.

The instructions on the fertiliser stated: “Spray once on leaves and fruit during June or July in dry
weather”, and gave details of dosage rates. Barry duly sprayed his apple trees on a sunny day in
July, but that night there was a heavy rainstorm, which washed away some of the fertiliser before
it took effect. Barry did not realise that rain could wash away the fertiliser and no specific
statement to this effect was contained in the instructions. The fertilisers Barry had previously
used were applied to the tree roots and were not affected by rain.

When the trees produced fruit, the apples were small and sour. Though Barry had previously sold
most of his apple crop to a local greengrocer and had won prizes for his apples at local
horticultural shows, this crop could not be sold or entered for shows. As a result, Barry became
depressed, his lecturing work suffered, and he was not even shortlisted for a promotion which
most of his colleagues thought he would get.

Barry now wishes to sue Nogrow Ltd for all compensation possible, including the purchase price
of the fertiliser, loss of profit on sale of the apple crop, loss of prize money from shows, stress,
and loss of the increase in salary he would have got on promotion.

Nogrow Ltd deny liability, and argue that, in any event, they are protected by the invoice terms
from any liability beyond the purchase price paid by Barry.

35
Issues:

1. Discuss the grounds on which Barry may make a claim against Nogrow Ltd.
2. Assuming Nogrow Ltd is in breach of the contract of sale discuss the validity of the terms
of sale in the invoice.
3. Assuming that Agro Ltd is liable for breach of the contract of sale, and is not protected from
liability by the terms of sale in the invoice, discuss the remedies available to Barry.

Rules and analysis

Section 2(1) of Sale of Goods Act 1979 (“SGA”) defines a contract of sale of goods as: “a
contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a
money consideration called a price”.1 The three key elements here are property, goods and money
consideration. Property here refers to ownership – selling is the most common method by which
ownership is transferred.2 “Goods” is defined by the SGA as including: “emblements, industrial
growing crops and things attached to or forming part of the land which are agreed to be severed
before sale or under the contract of sale” – this also includes all tangible moveable
things.3 Money consideration refers to the price in money paid for the ownership of the goods to
be transferred to the buyer.4 Applying these to the facts of the case, it can be concluded there is a
contract of sale between Nogrow Ltd (“Nogrow”) and Barry as Barry gave money consideration
to Nogrow so that the ownership of the goods (here the fertiliser) would be transferred to him.

The effect of there being a contract of sale between Barry and Nogrow is that the breach of the
terms of the contract (be it express or implied terms) would allow the innocent party to claim
damages only or claim damages and/or repudiate contract depending on the classification of the
term that has been breached.5 Terms of contract are classified as conditions and
warranties.6 Conditions of a contract are those which “go so directly to the very substance of the
contract or in other words, are so essential to its very nature that their performance or non
performance may fairly be considered by the other party as a substantial failure to perform the
contract at all.”7 The breach of a condition is serious and would give the aggrieved party a right
to claim damages and/or repudiate contract. Conversely, warranties are terms which are collateral
to the main purpose of a contract of sale – a breach of a warranty would give the aggrieved party
a right to claim damages but not a right to reject the goods.8

There are two types of contract terms – express terms and implied terms. Express terms are those
agreed by the parties to a contract whilst implied terms are implied by statute; in this case by ss
12-15 of the SGA. Sections 12 -15 of the SGA implies terms as to title, description, satisfactory
quality, fitness for purpose and sale by sample respectively.9 On the facts of the case it would
appear that there is a possibility that Barry may be able to bring a claim on the grounds that
Apple Gro was not of satisfactory quality and was not fit for purpose.

s.14(2) of the SGA provides that where the seller sells goods in the course of a business, there is
an implied term that the goods supplied are of satisfactory quality.10 The availability of this
ground to Barry depends on whether Nogrow sells fertilisers in the course of a business. In it was
decided that all sales carried out by a business should be defined as in the course of a business.
Thus, it can be concluded that Nogrow was selling in the course of a business.

36
The SGA further provides that goods are of satisfactory quality if they meet the standards that a
reasonable person would regard as satisfactory considering the price, description of the goods and
all other relevant circumstances.12 It is worthy to note that the satisfactory quality requirement
does not mean the goods have to be of the best quality, the standard of quality expected would
depend on all the facts of the case. For instance in 13 it was held that it is expected that defects
would appear sooner or later in a second hand car. Thus in application to facts of Barry’s case,
the question is an objective one, would a reasonable person consider Apple Gro to be of
satisfactory quality considering the price? It is likely to be that a reasonable person would expect
the quality of Apple Gro to be lower than other fertilisers of a higher price. However a reasonable
person would also have to consider that specifically the quality of the goods also includes the
fitness for all purposes for which goods of the kind are commonly supplied.14 Applying these to
the facts, fertilisers are commonly supplied to enhance the growth and products of a plant.
However Apple Gro did not serve this purpose for Barry’s apple trees, thus it can be concluded
that Apple Gro is not of satsifactory quality. Furthermore, the absence of specific warnings in the
instructions of Apple Gro can also aid the argument that it is of unsatisfactory quality. For
example, in , tinned milk with trademark infringing labels were held to be of unsatisfactory
quality. Similarly in , mineral water sold in a returnable bottle which burst and injured the buyer
was also held to be of unsatisfactory quality,

S.14(3) of SGA provides that where the buyer expressly or by implication makes known to the
seller the particular purpose for which the goods is being purchased there is an implied condition
that the goods are reaasonably fit for that purpose except the circumstances show that the buyer
did not rely or that it is unreasonable to rely on the skill and judgement of the seller.

Applying this to the facts, it does not appear that Barry had specifically told the sales assistant the
particular purpose for which he needed the fertiliser. However it can be argued that because
fertilizers have only one normal use, the mere fact of considering purcase would by implication
have made it known to the sales assistant that Barry intended to use the fertilizers for their normal
purpose.17 Furthermore on the facts, it was stated that did not seem to know much about the
products on sale thus it logically follows that it is unreasonable for Barry to have relied on the
skill and judgement of the sales assistant. However it is worthy to note that the courts seem ready
to infer reliance even when it appears unreasonable for a buyer to rely on the skill and judgement
of the seller. For instance in 18 Lord Wright said:

“….in question of a purchase from a retailer the reliance will be in general inferred from the fact
that a buyer goes to the shop in confidence that the trades man has selected his stock with skill
and judgement”.19

This can be compared with a situation where the buyer asks for an article by its trade or brand
name and does so in such a way as to exclude any discussion of its suitability then he is not
relying on the seller’s skill or judgement as illustrated in On this note, it can be argued that it was
reasonable for Barry to rely on the judgement of the sales assistant.

It is also worthy to consider the decision in 21 where it was held that the buyer had not relied on
the seller’s skill and judgement because the buyer had not communicated certain requirements to
the seller. Applying these to the facts, there is no indication that Barry specifically wanted
fertilisers which were sprayed on roots thus whether or not he mentioned this is irrelavant. His
known specification however is the fact that he wanted the product to be cheaper – of which the
37
sales assistant recommended a cheap fertiliser. There was no mention of the standard of quality
yet it can be implied that Barry would have wanted the fertiliser to serve their particular purpose.
Thus the sales assistant should have informed Barry of the disadvantages of his recommendation
– perhaps if he had, Barry would have opted for a different brand.

Therefore to conclude, it appears that Barry can bring a claim against Nogrow on the grounds that
Apple Gro was not of satisfactory quality and that it was not fit for particular purpose. However it
is important for Barry to know that his claim under the “fit for particular purpose” ground is
probably not strong enough to successful based on the above analysis.

The validity of the terms of sale depends on the operation of common law and the relevant
statute. On the facts, it would appear that given terms of sale, there are exclusion clauses. An
exclusion clause is a term of contract intended to exclude or limit the liability of one of the
parties to a contract, usually the seller.22

It is a common law rule that the terms of a contract are of no effect unless they are
incorporated.23 Terms of a contract can incorporated by a number ways, one of which is by
signing the contractual document. The terms of the contract in this case would be valid even if
the buyer did not read the contract before signing it as illustrated in 24 However if the document
was brought to the attention of the buyer after the contract had been made, the terms in the
document will not be incoproated into the contract terms as held in Thus this is one of the reasons
why reciepts and invoices cannot incorporate contract terms because they are usually given after
payment has been made (i.e after the contract is made). In the same vein, the court also rejects
reciepts and invoices as contractual documents as in

Applying these to the facts, it is conceded that the invoice containing the terms of the contract
was first brought to Barry’s notice when he decided to purchase Apple Gro and not after the
contract had been made (i.e not after he made payment) thus it can be argued that the terms were
validly incorporated after Barry signed the invoice albeit he did not read it as illustrated in .
However, it can be successfully argued that the invoice is not a contractual document because no
reasonable person would expect to find contractual terms in a document which proves that
payment has been made. Thus it can be concluded that the terms were not incorporated because
the invoice is not a contractual document therefore the terms do not form part of the contract and
are thus invalid.

The implied terms as to satisfactory quality and fitness for particular purpose are
conditions 27 which gives Barry the right to reject the product and/or claim damages. Barry can
also seek a remedy under s.48A and 48F of the SGA as he is a consumer buyer.28 (Barry is
deemed a consumer because, gardening is more of a hobby to him as he is actually employed as a
lecturer.29_)as well as recover the price he paid for Apple Gro.30

As to the measure of damages that will be awarded – this would be subject to the rule in 31 which
provides that damages can be obtained for losses naturally arising from the breach and any loss
which at the time of making the contract, Barry could have predicted as likely to result from the
breach. For illustration in 32 the buyer had purchased a larger boiler which was delivered 5
months late. Thus the buyer did not have the capacity to cater for a large volume of business. The
buyer was awarded damages for this loss of ordinary business which arose naturally from the late

38
delivery but not for some exceptionally lucrative contract that could have been secured had the
boiler been delivered on time.

Applying these to the facts, it can be concluded that Barry would receive damages for not being
able to sell his apples. However he will not be able to claim damages for not being able to enter
his apples for shows, nor for his depression, or his work suffering or failing to make the
promotion shortlist at work.

Footnotes
1
Sale of Goods Act 1979. s.2(1)
2
Paul Dobson and Robert Stokes, (Ebook 8th Edn, Sweet and Maxwell, 2012).
3
Sale of Goods Act 1979 s.61 and Dobson and Stokes
4
Ibid n2
5
Ibid
6
Ibid
7
Wallis & Wells v Pratt and Haynes 1911 AC 394
8
Sale of Goods Act 1979. S.61
9
Sale of Goods Act 1979. ss 12-15
10
Sale of Goods Act 1979. s.14(2)
11
1999 1 AII E.R.
12
Ibid s.14(2A)
13
1965 1 WLR 1013
14
Ibid s.14(2B)
15
1921 3KB 387
16
1920 1 KB 668
17
Priest v Last 1903 2 KB 148
18
1936 AC 85
19
Ibid at 99

39
20
1925 1 KB 260
21
2003 EWCA Civ 1030
22
Ibid n2
23
Ibid
24
1934 2 KB 394
25
1949 1 KB 532
26
1940 1 K.B 532
27
Sale of Goods Act S.14(2) and (3)
28
Sale of Goods Act. 1979. s.48A – 48F
29
See Feldarol Foundry Plc v Hermes Leasing (London) Ltd. 2004 EWCA Civ 747
30
Rowland v Divall 1923 2 KB 500
31
1854 9 Exch 341
32
1949 2 K.B 529

Sale of Goods Act and Compensation Problem Question (lawteacher.net)

40
Sample Mock Trial Closing Argument for a Assault Case
Here is an example of a defense lawyer closing argument in a self-defense case for mock
trial. It involves an allegation of assault, and the accused is claiming self-defense. Below is
the prosecutor's response. As a former prosecutor and a defense lawyer currently, I have
tried over 200 jury trials. The below is an example of what closing are like, with ideas that I
have pulled from various cases.

Thank you for your attention, ladies and gentlemen of the jury, on this very important case.

The prosecutor didn’t face a threat that night. The judge didn’t face a threat that night, and the
12 of you didn’t face a threat that night. Only one person did. And that is my client. He did what
he thought he had to. None of us had to make the split second decision that he did. And yet, we
are all asked to second guess him today. To Monday-morning quarterback him, if you will. It was
Supreme Court justice Oliver Wendall Holmes who said that “you can’t expect calm detachment
in the presence of an uplifted knife.” Now there was no knife involved in this case, but the point is
the same. People have to make split second decisions in exercising self-defense. Sometimes
people in hindsight should have, or could have, handled the matter differently. But hindsight isn’t
the measure we use when judging a defendant’s actions. Rather we analyze what happened from
the perspective of how things looked at the time to my client.

The alleged victim doesn’t look so scary in the light of day, in the courtroom witness chair, all
dressed up, cleaned up. But that is not the circumstance when my client used force, is it? The man
came at my client in a dark alley behind a tavern, and no one knew or could have known his
intentions. And my client decided that he wanted to go home that night, that he wanted to survive.

Self-defense is not just the stuff of law books. Self-defense is a defense that nature herself
recognizes, a recognition really that any living creature is going to act, or react a certain way
when faced with a threat.

Self-defense is often something that police and prosecutors don’t really understand. No one walks
up to police and prosecutors on the street and threatens them. That doesn’t happen because the
system would come down on them like a ton of bricks. No, it is people like my client Jacob Moore
who get messed with, who get bullied. The nobodies of this world. My client isn’t particularly big,
he isn’t important around town, and he might have looked like he was fair game for intimidation,
for bullying. But he stuck up for himself. He reacted. And now he is being judged. The jury system
was intended to stick up for the little guy. Our forefathers knew that someone or something had to
serve as a buffer between the individual citizen and the powerful government. My client has no
burden of proof, the state has to disprove self-defense beyond a reasonable doubt.

My client faces a serious offense. He is charged with a violent crime. His life is on the line. You
think the police would have done a more thorough job in the investigation. You really would. You
would think my client would be entitled to a fair investigation before people would pass judgment
on him. The police should have tried to find independent witnesses who were at the tavern that
night. They did not. How come none of the bartenders were subpoenaed? Instead the police
relied on the word of the alleged victim and his friends. And you know the kind of people they
are. None of their stories matched. Half of them admitted to drug use on the night in question. Is
that the type of scant proof that can send a man to jail?Doesn’t my client deserve better? Don’t

41
we all? Hold the state to its burden. A conviction in this case would be a travesty. Do the right
thing.

Example of the prosecutor’s response: Thank you for your attention in this matter. Ladies and
gentlemen, there is a difference between “self-defense” and retribution. There is a difference
between self-defense and an over-reaction. And there is a difference between what constitutes
reasonable doubt, and what amounts to just excuses by the defendant. Ladies and gentlemen of
the jury, the defendant provoked the fight that night by his aggressive conduct. The law doesn’t
allow a man to pick a fight, and then create the need to then defend himself.

There is a saying that actions speak louder than words. We ask you to judge the defendant by his
actions, by what he did that night, not by what he said today in the courtroom. His claims today
do not match his actions on that day in question.

We are a nation of laws, and every one of us must follow those laws. You know what? If you
have a problem with someone, you just walk away. Or you can even tell them off. You can tell
them “you’re no good” or “you’re a jerk.” You can really say that, because that is freedom of
speech. But what you can’t do is lay hands on someone. You can’t punch them, and you can’t
slap them. The law doesn’t allow that. And we all live by these laws. I think we all have that
temptation sometime in our life, to lash out. But you resist that impulse. Everyone has to do that.
It is part of being a grown up. It is part of living in a civilized society. Our system is a system that
holds people accountable for things like that. And it is part of what makes this country great.

This notion of accountability has a big place in our criminal justice system, that we are all
accountable for our actions. Now we don’t always like being held accountable, and we don’t
always own up to what we have done, but we all have to face the consequences of our own
actions. Every one of us.

The defense has essentially put the victim on trial, pointing out that the victim is a thief, that the
victim is a drug addict. But that doesn’t justify what happened to him. It cannot. We are all
entitled to the protection of the laws. Even the victim. I would submit to you that the victim has
more in common with us than we might first think. He has hopes and dream like we do, he feels
pain like we do, and as you can tell from the hospital photos, he bleeds red like we do. And you
know what, I am sure there was never a time when he looked in the mirror that he didn’t wish
that he made more of his life than he did. But he didn’t deserve what happened to him. No one
deserves that. Maybe he didn’t get the breaks in life that some of us did, or maybe he did and he
blew it, and God knows he made a lot of mistakes in his life, but you know what? He has paid for
every one of those mistake, everyone.

I want to talk about what I need to prove in this case. I also want to talk about what I don’t have
to prove. The law says I must prove beyond a reasonable doubt that on or about March 11th,
2013, that the defendant struck Jack Rain, and did so intentionally, and that there was an absence
of self-defense. I don’t have to prove why, what the motive was, or whether the injury was cause
by a punch or a kick. Just that an assault occurred. That is what I have to prove. That is it. I don’t
have to prove that the defendant is a bad person. And you know what, I maybe couldn’t prove
that. This case, no case, is a judgment of a person. Rather it is a judgment of their actions. Maybe
the defendant had a bad day, maybe he had too much to drink. And defendant isn’t the first guy

42
who found himself a little trouble on a Saturday night, and he won’t be the last. But I would ask
that you find him accountable for what he did. And that is assault in the 4th degree. Thank you.

43
 Huber &Stanislaw
Attorneys at Loaw
6 Front Street
Seaside,ME 01203
(603) 555-1111
March 14,20XX

Ada Warren
22 Green Mountain Road
Lincoln Notch, VT 05862

Dear Ms Warren:

As I promised when we first met last week, I’ve researched your rights against Seaside
Cruises and the State Marine Police. I believe that you probably would win a lawsuit against
Seaside but lose a suit against the police. In the second half of this letter, I’ll explain why.

After you and I spoke last week, I examined the police logs and talked to some of the
passengers. I was able to get some information (though not much from the police officers
and the captain of the Pride of Seaside). My advice later in this letter is based on my
understanding of the facts, which are described in the next few paragraphs. If I’ve gotten
any of the facts wrong, please tell me so that I can determine whether the law would treat
the situation differently.

Facts

You boarded the Pride of Seaside at 8:30 in the evening. The boat left the dock at 9:00 pm,
and you went below at about 9:30 and were asleep by about 10:15. You had felt ill earlier
in the evening and had wanted to rest. At 10:40 pm, the boat was boarded by Officers
Magrane and Kroyer of the State Marine Police, who suspected that a sailor had marijuana
hidden behind his bunk. They found what they were looking for, arrested the sailor, and
ordered the captain to sail to Marine Police dock. There, the boat was impounded and the
sailor was taken away by the police. The other passengers and the rest of the crew were
awakened by the ruckus and came on deck, where they were told by Officer Kroyer that
they would have to leave the boat. Officer Magrane drove the passengers (expect you) in a
police van to a hotel, where they slept.

Neither the crew nor the police searched the boat to make sure no one else was aboard. The
police officers didn’t offer a passenger list to the police or compare the passengers on deck

44
with boat’s passenger manifest. The police say they thought it was the crew’s responsibility
to get everyone off the boat. The captain says that he thought the police were doing that.

You slept soundly through the night. At 12:15 a.m., Officer Kroyer sealed the boat. He
locked every outer door and hatch, removed the gangway, locked it in a shed, and went
home. As a result, you wouldn’t have been able to get to the deck because all the doors and
hatches were locked from the outside, and even if you had been able to get to the deck, you
wouldn’t have been able to leave the boat.

No one else was at the dock until Officer Tedescu arrived at about 6:30 a.m. Tedescu found
a note from Kroyer that the boat had been impound but not yet been searched except for the
sailor’s bunk. He rolled out the gangway, walked on board, and at 6:45 unlocked the door
to the passageway outside your cabin. You awoke at about 7:00 a.m., opened your cabin
door, and found Officer Tedescu standing in the passageway. Officer Tedescu explained
what had happened, and you suddenly felt light-headed and fell to the floor of the
passageway. In his written report, Officer Tedescu used the word “fainted” to describe this.
You revived in a moment or two, and he drove you to hospital, where an emergency room
physician decided that you needed no treatment.

You were shocked at the indignity of learning that you had spent the night locked up in a
police boat yard rather than cruising at sea as you thought you had been. For you, this was
the same as being locked up in a jail cell overnight. Both are shameful, treating you like a
criminal. Except for collapsing or fainting, you didn’t suffer physically from these events.
Seaside Cruises has refused to refund the $3,500 that you paid for this two-week cruise.
They have not provided any passenger with a refund.

Possible Lawsuits

When we met last week, you said that you aren’t sure that legal action would be worth the
effort, but that you feel taken advantage of and wanted to know what your rights are. I’ll
explain what I think would happen if you were to sue Seaside Cruises and the Marine
Police.

Seaside Cruise: The law considers Seaside to be a common carrier. Airlines, railroads, and
bus companies are also common carriers. Common carriers owe a very high degree of care
to their passengers, including the duty to rescue a passenger from harm. Based on the facts
we have at this point, I think you would probably win on this claim. Seaside’s employees
should have made sure you were off the boat before it was locked up or at least have told
the police that you were aboard.

45
But it’s harder to predict how much money a jury would award on this claim. It might be
small on the ground that you were unaware at the time that you were locked into the boat.
Or it might be larger if the jury can appreciate the depth of indignity.

On the other hand, Seaside Cruises does owe you a refund of $3,500. You paid for a service
(a cruise) that Seaside did not provide. The law is clear that they aren’t entitled to keep
money, even though the cruise was prevented by police seizure of their boat.

You can bring both claims against Seaside – for the refund and for failing to get you off the
boat – in a single lawsuit.
The Marine Police: If you were to sue the state for false imprisonment, I believe that you
wouldn’t succeed. In this case, a false imprisonment claim can succeed only of the person
confined knew of the confinement while it was occurring or was harmed by it. The law
defines “harm” in this sense as economic loss or physical injury.

You did suffer an economic loss (the $3,500 that Seaside has not refunded) but not because
you were locked in the boat. If the police had driven you to a hotel, Seaside still would have
refused to refund the money.

Because you learned of your confinement only after Officer Tedecus had unlock, the only
way of succeeding in a suit against the police would be to show that the confinement caused
you physical injury. The only physical injury is your collapse when Officer Tedecus told
you that you had been confined. But a jury could conclude that you collapse because you
were still ill from the night before.

Moreover, in a case called Osborne v. Floyd, our state supreme court recently decided that
the physical injury must be caused by the confinement itself. It isn’t enough for the harm
to be caused by knowledge of the confinement. In Osborne, a man was comatose and
unaware he had been locked into a cellar. His medical condition didn’t deteriorate before
rescuers broke down the door. But after he regained consciousness and learned what had
happened, he experience nightmares. The court held that the nightmares weren’t sufficient,
and an injury would have to be physical for him to recover. I think the courts would treat
your collapsing onto the floor the same way, especially because the emergency room
physician decided that you needed no medical treatment. I wish this weren’t so, but
unfortunately, it is.

Let’s talk further in a few days. If, after thinking this over, you’re interested in suing
Seaside Cruise, I can explain what a lawsuit would cost so you can decide whether to go

46
ahead. It might be possible to reduce the expense of suing of the other passengers join with
you and sue to get the refunds they’re entitled to.

Please call my office when you feel ready.

Sincerely,
Gary Stainslaw

47
 PART 3: BIBLIOGRAPHY
1. Compulsory documents
- Chapter 1 (Study of legal reasoning), Martin P. Golding, Legal Reasoning,
(Broadview Press, 2001)
- Chapter 2 (Introduction to legal reasoning), Richard K. Neumann, Jr., Legal
Reasoning and Legal Writing, (Little, Brown and Company, 1990)
- Case: “The European Union Belongs to its Citizens: Three Immodest Proposals’
(1997) 22 EL REV 150-56
2. Optional documents
- Books and Book sections
1) Sharon Hanson, Legal Method, Skills and Reasoning (Routledge.Caendish,
3rd, 2010)
2) Ronald S. Granberg, Legal Reasoning
3) Attorney Paul Bergman & Sara Berman-Barret, Represent yourself in court –
How to prepare and try a winning case, Publisher Nolo
- Articles:
1) Donald H. J. Hermann, ‘A Structuralist Approach to Legal Reasoning’ (1975)
48(5) Southern California Law Review
2) Edward H. Levi, ‘An Introduction to Legal Reasoning’ (1948) 15 (3)
University of Chicago Law Review
3) M. L. Ferson, ‘Factors of Legal Reasoning’ (1938) 12 University of
Cincinnati Law Review
4) Richard W. Bourne, ‘Five Approaches to Legal Reasoning in the Classroom:
Contrasting Perspective on O’Brien v. Cunard S.S. Co.’ (1992) 57 Missori
Law Review
- Cases:
+ Plessy v. Fergusion (1896) 163 U.S. 537
+ Brown v. Board of Education (1954) 347 U.S. 483

48
- Websites:
http://writingcenter.unc.edu/handouts/transitions/
http://www.lawnerds.com/guide/irac.html
http://groups.csail.mit.edu/dig/TAMI/inprogress/LegalReasoning.html

TEACHER
Assoc. Prof. Dr. Nguyen Thi Phuong Hoa

49