Freedom of Contract

Question for coursework two:

If a business to business contract includes an exclusion clause, then the idea of freedom of contract should be upheld and the Courts should not interfere in the partie’s agreement.

 

With reference to UK case law and UK academic opinion evaluate the above statement

 

Word Limit: 2,000 words excluding footnotes and bibliography.

 

Referencing – OSCOLA REFERENCING!!!

All quotations from, or use of other writers’ work must be properly referenced- that is, you must give the author, title, and date of publication of the work concerned, and the page or section number of the passage quoted or cited. Reference style should remain consistent throughout each submitted essay.

Your coursework answer should be properly referenced using the Oxford Referencing System (OSCOLA) see www.law.ox.ac.uk

You should include a full bibliography at the end of your work.

OSCOLA Quick Reference Guide

 

Primary Sources

Do not use full stops in abbreviations. Separate citations with a semi-colon.

Cases

Give the party names, followed by the neutral citation, followed by the Law Reports citation (eg AC, Ch, QB). If there is no neutral citation, give the Law Reports citation followed by the court in brackets. If the case is not reported in the Law Reports, cite the All ER or the WLR, or failing that a specialist report.

Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] 1 AC 884

R (Roberts) v Parole Board [2004] EWCA Civ 1031, [2005] QB 410

Page v Smith [1996] AC 155 (HL)

When pinpointing, give paragraph numbers in square brackets at the end of the citation. If the judgment has no paragraph numbers, provide the page number pinpoint after the court.

Callery v Gray [2001] EWCA Civ 1117, [2001] 1 WLR 2112 [42], [45]

Bunt v Tilley [2006] EWHC 407 (QB), [2006] 3 All ER 336 [1]–[37]

R v Leeds County Court, ex p Morris [1990] QB 523 (QB) 530–31

If citing a particular judge:

Arscott v The Coal Authority [2004] EWCA Civ 892, [2005] Env LR 6 [27] (Laws LJ)

Statutes and statutory instruments

Act of Supremacy 1558

Human Rights Act 1998, s 15(1)(b)

Penalties for Disorderly Behaviour (Amendment of Minimum Age) Order 2004, SI 2004/3166

EU legislation and cases

Consolidated Version of the Treaty on European Union [2008] OJ C115/13

Council Regulation (EC) 139/2004 on the control of concentrations between undertakings (EC Merger Regulation) [2004] OJ L24/1, art 5

Case C–176/03 Commission v Council [2005] ECR I–7879, paras 47–48

European Court of Human Rights

Omojudi v UK (2009) 51 EHRR 10

Osman v UK ECHR 1998–VIII 3124

Balogh v Hungary App no 47940/99 (ECHR, 20 July 2004)

Simpson v UK (1989) 64 DR 188

Secondary Sources

Books

Give the author’s name in the same form as in the publication, except in bibliographies, where you should give only the surname followed by the initial(s). Give relevant information about editions, translators and so forth before the publisher, and give page numbers at the end of the citation, after the brackets.

Thomas Hobbes, Leviathan (first published 1651, Penguin 1985) 268

Gareth Jones, Goff and Jones: The Law of Restitution (1st supp, 7th edn, Sweet & Maxwell 2009)

K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998)

Contributions to edited books

Francis Rose, ‘The Evolution of the Species’ in Andrew Burrows and Alan Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (OUP 2006)

Encyclopedias

Halsbury’s Laws (5th edn, 2010) vol 57, para 53

Journal articles

Paul Craig, ‘Theory, “Pure Theory” and Values in Public Law’ [2005] PL 440

When pinpointing, put a comma between the first page of the article and the page pinpoint.

JAG Griffith, ‘The Common Law and the Political Constitution’ (2001) 117 LQR 42, 64

Online journals

Graham Greenleaf, ‘The Global Development of Free Access to Legal Information’ (2010) 1(1) EJLT < http://ejlt.org//article/view/17 > accessed 27 July 2010

Command papers and Law Commission reports

Department for International Development, Eliminating World Poverty: Building our Common Future (White Paper, Cm 7656, 2009) ch 5

Law Commission, Reforming Bribery (Law Com No 313, 2008) paras 3.12–3.17

Websites and blogs

Sarah Cole, ‘Virtual Friend Fires Employee’ (Naked Law, 1 May 2009) <www.nakedlaw.com/2009/05/index.html> accessed 19 November 2009

Newspaper articles

Jane Croft, ‘Supreme Court Warns on Quality’ Financial Times (London, 1 July 2010) 3

 

 

 

LLB Programme Handbook

 

More guidance on the School Assessment policies is available in the LLB Programme Handbook which is available on StudyNet.

 

 

 

Expectations of written assessment at Level 5

 

Presentation & structure Includes:	Content / Knowledge Includes:	Breadth / Depth & Integration of Sources Includes:	Analysis & Application includes:	Presentation of References Includes:
Structure work to present a coherent point of view from both sides of the argument if required   Use the introduction to set out these ideas   Begin to use more academic and legal language	Identify the legal or other relevant issues raised by the question   State the law or other sources accurately and in appropriate detail   Provide a reasoned and supported conclusion	Demonstrate use of texts and leading case law or other sources   Consider both sides of an argument with supporting material from law or other sources   Integrate this supporting material concisely into your argument	Analysis: Use your material to demonstrate your understanding of the issues   Attempt to include a balance of contrasting arguments to support your analysis from your sources   Application: Make good use of supporting sources to develop your application	Use a range of footnotes to cite your references   This can be used to evidence your wider reading and research   Include all references in your bibliography   Use the OSCOLA referencing system – information available on Studynet under Learning Resources and the Law Subject Toolkit
Key tips:   Continue to make good use of paragraphs to logically order your discussion   Check your grammar for clarity of expression   Use the spell checker and double check unusual words such as case names   Ensure your spell checker is set to English UK   Make more substantial use of footnotes than at level 4	Key tips:   Aim for a balance of appropriate detail highlighting the key issues from your sources depending on the significance of the issue to the answer   Avoid description, balance your argument with analysis and application   Avoid including irrelevant material to the question set	Key tips:   For a higher mark you will need to show evidence of reading beyond the basic texts and leading cases.   Look for relevant journal articles or case notes to enhance your answer	Key tips:   Review the instruction in the Q – words such as ‘Analyse’, ‘Argue’, ‘Examine’  elate to Analysis whilst words such as ‘Apply’ ‘Demonstrate’, ‘Illustrate’ relate to Application   Keep the instructions in mind whilst preparing your answer   In a problem question scenario you should analyse the issues from both sides of the competing arguments and then in your application identify the position of the party you are asked to advise providing any difficulties to their position in your conclusion	Key tip:   Avoid plagiarism   Ensure you use quotation marks where relevant and reference the quotation

 

If this is an individual piece of assessed work, ensure you avoid collusion when preparing and writing your answer

 

Detailed criteria on mark ranges below:

 

Written Work Assessment and Grading Criteria: Level 5

 

Numeric Grade	Grade Descriptor	Written Work Level 5 Grading Criteria
		Presentation & structure	Content / Knowledge	Breadth / Depth & Integration of Sources	Analysis & Application	Presentation of References
80-100	Outstanding work	Outstanding presentation & clarity. No significant grammatical / spelling errors.	Outstanding exploration of topic showing excellent knowledge & understanding.	Outstanding breadth & depth of sources used. Outstanding integration of sources into work.	Outstanding level of analysis & application. Highly developed / focused work.	Outstanding standard of referencing within text with accuracy to those on list. Accurate list & use of recommended referencing system.
70-79	Excellent work	Excellent structure. Fluent writing style with very few errors.	Excellent level of knowledge &   demonstrated. Covers all relevant points & issues.	Excellent breadth & depth. Excellent integration of sources into work.	Excellent level of   analysis & application of issues.	Excellent standard of referencing within text with accuracy to those on list. Accurate list & use of recommended referencing system.
60-69	Very good work	Very good clear structure. Articulate & fluent writing style. Very few grammatical errors & spelling mistakes.	Very good level of knowledge & understanding demonstrated.  Some minor issues not fully explored or applied	Very good breadth & depth appropriate to topic. Sources integrated very well.	Very good level of, analysis & application but not consistently taken to full extent.	Very good standard of referencing within text with general accuracy to those on list. Use of recommended referencing system.
50-59	Good work	Good clear presentation & structure with paragraphing. Writing is mainly clear but some spelling &/ or grammatical errors.	Good level of knowledge & understanding demonstrated. Most major issues explored with some minor aspects not considered	Good breadth & depth appropriate to topic. Sources integrated well.	Good level of analysis & application but some issues could be addressed or developed further. Some minor omissions.	Good standard of referencing within text with most accurate to those on list. Use of recommended referencing system.
40-49	Satisfactory work	Satisfactory but basic structure. Not always written clearly & has grammatical & / or spelling errors.	Satisfactory level of knowledge & understanding but with limited integration into topic set.  Some major issues not fully explored and minor issues omitted.	Satisfactory breadth & depth appropriate to topic. Sources integrated in some places.	Satisfactory level of analysis & application but some matters superficially addressed or omitted	Basic referencing within text & consistent use of referencing system. Some inaccuracies in recording.
30-39	Marginal Fail	Weak format, limited or poor structure. Muddled work with many spelling & / or grammatical errors.	Unsatisfactory evidence of knowledge & understanding with limited exploration or omission of the major issues	Limited or muddled understanding of the topic with limited reference to relevant sources with some irrelevant to topic.	Limited evidence of analysis & application. More development & comment needed. Answer generally limited to accurate description.	Use of referencing system with errors & inconsistently applied. Limited referencing within the text. Limited accuracy of in-text references compared to those in the final Reference list.
20 – 29	Clear Fail	Inadequate format & poor paragraphing / signposting. Inappropriate writing style Poorly written &/or poor spelling & grammar.	Inadequate evidence of knowledge & understanding with very limited exploration or omission of the major issues.	Very limited understanding of topic with very limited reference to relevant sources and possible reference to irrelevant sources	Inadequate. Very limited evidence of analysis & application. Answer generally limited to description, some of which is inaccurate.	Inadequate Inaccurate use of referencing system or absence of use of system
1 – 19	Little or Nothing of merit	Nothing of merit. Poorly written work, lacking structure, paragraphing / signposting. Many inaccuracies in spelling & grammar.	Nothing of merit. No evidence of appropriate knowledge & understanding.	Nothing of merit No breadth or depth to answer nor reference to relevant sources.	Nothing of merit. No evidence of analysis & application.	Nothing of merit Referencing system was not or very poorly used.