Melbourne Law School - Theses
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ItemRecent developments in the law of consumer guarantees and indemnitiesBingham, Paul ( 1985)A brief examination of the history of the guarantee reveals that equity treated the guarantor as a favoured debtor, given the absence of real benefit to the guarantor. However, these protections have largely been removed by standard form guarantee contracts used by, credit providers, and the law is also otherwise deficient in protecting consumer guarantors. As the expansion of the use of credit in recent years has meant that guarantees are now sometimes given carelessly and thoughtlessly, by persons without adequate education and resources to protect their interests, regulation is required (Chapter 1). The statutory regulation of guarantees before the passing of the Credit Act was inadequate. After examining the scope and nature of the Credit Act, the effect of the Credit Act on the regulation of guarantees is examined (Chapter 2). The extent to which the common law and statute law regulate pre-contractual information given to guarantors is then examined. It is concluded that room for improvement exists (Chapter 3). The extent to which the common law and statute law regulate the exercise of undue influence, unfair pressure and the making of unconscionable bargains is then examined and it is concluded that developments will occur rapidly in this area (Chapter 4). Common law and statutory provisions which discharge the guarantor from liability are then examined in the light of the operation of the Credit Act and it is concluded that some flaws exist both in principle and in the operation of the law (Chapter 5). The extent to which the guarantor is entitled to control the appropriation of payments made by the debtor, and the extent to which the guarantor's liability is coextensive with that of the debtor is then examined and some changes suggested (Chapter 6). The guarantor's rights to have action taken first against the debtor and the debtor's assets, the guarantor's rights to notice before action, and the right of indemnification after action, are then examined (Chapter 7). The possible reasons for the non-regulation of guarantees are examined and dismissed; past suggestions for reform and possible future reforms are examined (Chapter 8). Standard form contracts of guarantee are discussed and the text of a draft fair, simple English, standard form guarantee is suggested (Chapter 9). The law is as stated at 30 November, 1985.
ItemThe law relating to the protection and treatment of animals in VictoriaMcInnes, Susan Elizabeth ( 1984)The subject matter of this thesis is the Victorian law relating to the protection and treatment of animals. Brief reference is made by way of comparison with the laws of other jurisdictions. This thesis attempts to survey the law and examine the way the law provides some protection for animals even though animals are not capable of holding or enforcing legal rights in our system of law. This is generally by way of protecting property rights of owners, the public morality or the public interest in the natural resource of animals. As traditional western attitudes have generally accepted man's dominant status over animals, the law reflects the greater weight to be given to human needs or benefits in balancing any conflicting interests of animals with human interests. Therefore, against the historical background of Chapter 1, the remaining chapters set out the law protecting animals attempting to show how the law has balanced the various competing interests involved. In Chapter 2 the Victorian statutory provisions relating to cruelty to animals are surveyed. They reflect that cruelty to animals is generally prohibited under the Protection of Animals Act 1966. However the concept of cruelty applied to animals requires that there be a balancing between the pain inflicted on the animal and the circumstances surrounding the infliction of pain. The statutory provisions reflect the concept. Cruelty is generally not prohibited under the Act if it can be justified as being reasonable in the circumstances, often on the, grounds that it can be justified in terms of serving a human need. The Act goes on to provide specific exemptions from the cruelty provisions for activities which are generally accepted in Western Society as essential or convenient for human activities or needs and these are not prohibited. The major exemptions relate to using animals for farming purposes, hunting purposes, experimental purposes and exterminating vermin. These are discussed in Chapters 3, 4 and 5. Chapter 6 surveys the law relating to animals used for entertainment purposes. The present law reflects a desire to balance the need to prohibit those sports and entertainments which offend against the moral standards of the community such as blood sports and the need to retain those activities where ill-treatment of animals can be justified in terms of a legitimate object such as an educational interest, in the case of wildlife parks and zoos or a sporting or commercial interest in the case of horse racing. Chapter 7 looks briefly at the Victorian law relating to the conservation of wildlife. The law on this subject reflects the Christian philosophy of preserving all animal species for God's kingdom to come. This basis for the law is strengthened by an increasing awareness of the need to preserve all the animal species as a requirement for preserving the natural balance of animal species necessary for the survival of all plant and animal life. However the law provides varying degrees of protection depending on the animal concerned. Animals which are not native to Australia and animals regarded as vermin do not receive this special protection, because their survival is not essential to the natural balance to be preserved. The law also makes exemptions to allow wildlife to be used for educational purposes such as in wildlife parks and for restricted commercial purposes, such as for sale and for breeding. Thus the law on this subject also reflects the balancing processes involved in preserving wildlife but allowing for some human activities which are recognised or established as sufficiently important to be exceptions to the rule of preserving wildlife. The law is, unless otherwise stated, as at February 1983.