ACCA考试F4真题答案.docx

1、ACCA考试F4真题答案AnswersFundamentals Level Skills Module, Paper F4 (ENG)Corporate and Business Law (English) June 2012 Answers1 (a) The doctrine of binding precedent is one of the central principles of the English legal system. The doctrine refers to the factthat, within the hierarchical structure of the

2、 English courts, a decision of a higher court will be binding on a court lower thanit in that hierarchy. In general terms, this means that when judges try cases, they will check to see if a similar situation hascome before a court previously. If the precedent was set by a court of equal or higher st

3、atus to the court deciding the newcase, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent isfrom a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it.The Hierarchy of the courtsThe

4、Supreme Court (previously the House of Lords) stands at the summit of the English court structure and its decisions arebinding on all courts below it in the hierarchy. As regards its own previous decisions, up until 1966 the House of Lordsregarded itself as bound by its previous decisions. In a Prac

5、tice Statement (1966 3 All ER 77) of that year, however, LordGardiner indicated that the House of Lords would in future regard itself as free to depart from its previous decisions where itappeared right to do so. There have been a number of cases in which the House of Lords has overruled or amended

6、its ownearlier decisions (e.g. Conway v Rimmer (1968); Herrington v British Rail Board (1972); Miliangos v George Frank (Textiles)Ltd (1976); R v Shivpuri (1986) but this is not a discretion that the Supreme Court will exercise lightly. It has to berecognised that in the wider context the Supreme Co

7、urt is subject to decisions of the European Court of Justice in terms ofEuropean Community law, and, with the implementation of the Human Rights Act 1998, the decisions of the European Courtof Justice in matters relating to human rights.In civil cases the Court of Appeal is generally bound by previo

8、us decisions of the Supreme Court and its own previousdecisions. There are, however, a number of exceptions to this general rule. These exceptions arise where:(i) there is a conflict between two previous decisions of the Court of Appeal.(ii) a previous decision of the Court of Appeal has been overru

9、led by the Supreme Court. The Court of Appeal can ignore aprevious decision of its own which is inconsistent with European Community law or with a later decision of the EuropeanCourt.(iii) the previous decision was given per incuriam, i.e. in ignorance of some authority that would have led to a diff

10、erentconclusion (Young v Bristol Aeroplane Co Ltd (1944).Courts in the criminal division, however, are not bound to follow their own previous decisions which they subsequentlyconsider to have been based on either a misunderstanding or a misapplication of the law.The Divisional Courts of the High Cou

11、rt are bound by the doctrine of stare decisis in the normal way and must follow decisionsof the Supreme Court and the Court of Appeal. They are also normally bound by their own previous decisions, although incivil cases it may make use of the exceptions open to the Court of Appeal in Young v Bristol

12、 Aeroplane Co Ltd, and in criminalappeal cases the Queens Bench Divisional Court may refuse to follow its own earlier decisions where it feels the earlierdecision to have been incorrectly made.The High Court is bound by the decisions of superior courts. Decisions by individual High Court Judges are

13、binding on courtsinferior in the hierarchy, but such decisions are not binding on other High Court Judges although they are of strong persuasiveauthority and tend to be followed in practice.Crown courts cannot create precedent and their decisions can never amount to more than persuasive authority. C

14、ounty courtsand magistrates courts do not create precedents.(b) Binding precedentIf a precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the presentcase should normally follow the rule of law established in the earlier case.Persuasive precede

15、ntFrom the foregoing it can be seen that courts higher in the hierarchy are not bound to follow the reasoning of courts at a lowerlevel in that hierarchy. However, the higher courts will consider, and indeed may adopt, the reasoning of the lower court. Asa consequence of the fact that the higher cou

16、rt is at liberty not to follow the reasoning in the lower court such decisions aresaid to be of persuasive rather than binding authority. It should also be borne in mind that English courts are in no way boundto follow the reasoning of courts in different jurisdictions, and it should be remembered t

17、hat for this purpose Scotland qualifiesas having its own legal system. However, where a court from another jurisdiction has considered a point of law thatsubsequently arises in an English case, the English courts will review the reasoning of the foreign courts and may follow theirreasoning if they f

18、ind it sufficiently persuasive.72 (a) Invitation to treatInvitations to treat are distinct from offers in that rather than being offers to others, they are in fact invitations to others tomake offers. The person to whom the invitation to treat is made becomes the actual offeror, and the maker of the

19、 invitationbecomes the offeree. An essential consequence of this distinction is that, in line with the ordinary rules of offer andacceptance, the person extending the invitation to treat is not bound to accept any offers subsequently made to them.The following are examples of common situations invol

20、ving invitations to treat:(i) the display of goods in a shop window The classic case in this area is Fisher v Bell (1961) in which a shopkeeperwas prosecuted for offering offensive weapons for sale, by having flick-knives on display in his window. It was held thatthe shopkeeper was not guilty as the

21、 display in the shop window was not an offer for sale but only an invitation to treat.(ii) the display of goods on the shelf of a self-service shop In this instance the exemplary case is Pharmaceutical Societyof Great Britain v Boots Cash Chemists (1953). The defendants were charged with breaking a

22、law which provided thatcertain drugs could only be sold under the supervision of a qualified pharmacist. They had placed the drugs on opendisplay in their self-service store and, although a qualified person was stationed at the cash desk, it was alleged that thecontract of sale had been formed when

23、the customer removed the goods from the shelf. It was held that Boots were notguilty. The display of goods on the shelf was only an invitation to treat. In law, the customer offered to buy the goods atthe cash desk where the pharmacist was stationed.(iii) a public advertisement Once again this does

24、not amount to an offer. This can be seen from Partridge v Crittenden(1968) in which a person was charged with offering a wild bird for sale contrary to Protection of Birds Act 1954, afterhe had placed an advert relating to the sale of such birds in a magazine. It was held that he could not be guilty

25、 of offeringthe bird for sale as the advert amounted to no more than an invitation to treat.(iv) a share prospectus Contrary to common understanding such a document is not an offer. It is merely an invitation totreat, inviting people to make offers to subscribe for shares in a company.(b) A tenderTh

26、is form of invitation to treat arises where one party wishes particular work to be done and issues a statement askinginterested parties to submit the terms on which they are willing to carry out the work. In the case of tenders, the person whoinvites the tender is simply making an invitation to trea

27、t. The person who submits a tender is the offeror and the other partyis at liberty to accept or reject the offer as they please.The effect of acceptance depends upon the wording of the invitation to tender. If the invitation states that the potentialpurchaser will require to be supplied with a certa

28、in quantity of goods, then acceptance of a tender will form a contract andthey will be in breach if they fail to order the stated quantity of goods from the person submitting the tender. If, on the otherhand, the invitation states only that the potential purchaser may require goods, acceptance gives

29、 rise only to a standing offer.In this situation there is no compulsion on the purchaser to take any goods, but they must not deal with any other supplier.Each order given forms a separate contract and the supplier must deliver any goods required within the time stated in thetender. The supplier can

30、 revoke the standing offer but they must supply any goods already ordered (Great Northern Railwayv Witham (1873).3 A tort is a wrongful act against an individual which gives rise to a non-contractual civil claim. The claim is usually for damages,although other remedies are available. Liability in to

31、rt is usually based on principle of fault, although there are exceptions.Negligence is recognised as the most important of the torts, its aim being to provide compensation for those injured through thefault of some other person. However, an individual is not automatically liable for every negligent

32、act that he or she commits andin order to sustain an action in negligence it must be shown that the party at fault owed a duty of care to the person injured as aresult of their actions. Consequently, the onus is on the claimant to establish that the respondent owed them a duty of care. Eventhen there are defences available for the defendant in a tort action.(a) Although not strictly a defence for negligence, the application of the concept of contributory negligence can be used to redu