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6 the courts apply both subjective and objective

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6) The courts apply both subjective and objective tests in their judgments. Objective tests are applied to civil cases, while subjective tests are applied to most criminal cases. (a) Which test does the court employ to determine the intention of the parties to be legally bound? To ascertain whether the intention of the parties is to be legally bound, the course will employ an objective test. The steps for testing for intention are to first look at the type of transaction
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and apply the relevant presumption. Then look at any evidence which would rebut the presumption, testing the evidence objectively. See Wakeling v Ripley (1951) SR (NSW) 183 where the presumption was rebutted after looking at the circumstances objectively. (b) Using your own words, explain the objective test and the subjective test. The objective test is a preferred method, and most used, in civil cases. The courts will test for intention based on what a ‘reasonable person’ would do, considering all the available evidence. The subjective test is most used in criminal trials and very rarely in civil cases. The courts will test for intention based on what the ‘actual party intended’. (c) What are the characteristics of the ‘reasonable person’ or ‘innocent bystander’? A reasonable person is a hypothetical person, they do not exist. With adequate intelligence and lack of bias. An innocent bystander is a viewer, watcher, onlooker, a guiltless witness of a crime. Exercise 4.2 Read the case summary of Wakeling v Ripley (1951) SR (NSW) 183 (Parker and Box, p79). In one or two sentences each: 1) State the facts of the case Case Facts: Ripley, who lived in a large house, was a wealthy and elderly man. He had a sister (Wakeling), who is married and lived in England, whom he wrote an invitation to live with him in Sydney. He added that the he promise to leave them his property and that the Wakeling can live for free in his house. With this on hand, the Wakelings left England, sold their properties, and his wife resigned from his job to transfer to Sydney. After almost a year, the two parties had a major disagreement. As a result, Ripley sold his property and altered his will by excluding the Wakeling from it. Wakeling then sued Ripley for infringing their contract. Case Issue: The issue of the case was whether or not the agreement between the family members was legally enforceable. Case Decision:
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It was decided by the court that the circumstances which arose from the family members result to a legally binding contract. Case Reason/s: The reason for the decision was that the effect of the migration, which was decided by the Wakeling, had serious effects from their lives. Therefore, the assurance that they expected from Ripley can had resulted to a legal agreement between them. 2) Explain the legal issue that the court had to determine The legal issue is that the court must determine whether there was a binding contract between Mr Ripley and Mr & Mrs Wakeling. The must objectively test whether both parties intended for there to be a binding agreement.
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