1 Introduction

Contents
11 Commerciallaw 7
12 Learningoutcomesforcommerciallaw 9
13 Approachingyourstudy 10
14 Theexamination 13
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Introduction
This subject guide provides a structure for your study of commercial law. It gives an over-
view of the various topics of which this course is comprised and is a guide to the essential
and further reading materials. It is not a substitute for those reading materials. You should
work through each chapter and the associated readings and you should undertake the
activities as a means of deepening your understanding of the subject. At the end of each
chapter, you should pause to consider whether you have achieved the learning outcomes.
While commercial law is based in contract law, it also includes elements of tort, equity
and property law. The resources on which a commercial lawyer draws include legislation,
cases and international agreements. This course, therefore, builds on knowledge acquired
through your study of law and it develops your skills of analysis and synthesis.
Please note that this syllabus has been revised from that originally published in 1999
(with subsequent updates). In those topics that have been retained, some issues are no
longer covered (e.g. the discussion of the regime covering commercial agents has been
almost entirely removed) or there has been a change of emphasis.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
approach the study of commercial law in a systematic way
understand how this subject guide is organised and the various elements of which it is
comprised
understand how to develop your learning skills
understand how to approach the examination.

You need to open a notebook

or ring binder for this subject.
This will be for recording
answers to activities and
making working notes. It is
not the same as your Skills
portfolio, which should
contain the evidence that you
are acquiring learning and
legal skills.
You need to open a notebook
or ring binder for this subject.
This will be for recording
answers to activities and
making working notes. It is
not the same as your Skills
portfolio, which should
contain the evidence that you
are acquiring learning and
legal skills.
For more help on studying
successfully, and undertaking
activities, see the Learning
skills for law guide.
For more help on studying
successfully, and undertaking
activities, see the Learning
skills for law guide.
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1.1 Commerciallaw
Commercial law is a dynamic and exciting area. It must be fexible in order to keep pace
with the rapid changes in business and with the globalisation of markets. At the same time,
it must deliver the certainty that business requires.
Commercial law is a subject that is diffcult to defne. It encompasses the law that applies
to business and includes contract, company law, agency, sale of goods, banking, intel-
lectual property, competition law, taxation law and insurance. This course does not seek
to cover all of these subjects. The object is to look at certain areas in order to acquire an
understanding of the main themes, principles and practices of commercial law.
This course is, therefore, organised around the contract of sale. In this it refects the view of
one leading writer, Professor Sir Roy Goode, who remarked that commercial law comprises
that branch of law which is concerned with rights and duties arising from the supply of
goods and services in the way of trade (Goode, p.8). The syllabus

comprises:
the law of agency
the law of sale of goods
the law of international sale of goods
the law relating to payment by documentary credits.
By this stage, you might have reached the view that commercial law is not a separate sub-
ject, but a number of distinct areas of law that have been gathered together. Indeed, you
might, with Professor Goode (p.1203), ask, Does commercial law exist? This is a question
that you should think about while you are studying. Unlike many jurisdictions, there is no
commercial code in English law.
The roots of modern commercial law can be traced to the lex mercatoria or law merchant
(see Sealy and Hooley, Chapter 1, section 3, pp.1419). This was, broadly, the law applied
by merchants in their own courts. Those courts did not necessarily apply domestic law to
international trade. The rules developed in these courts were incorporated into the com-
mon law, particularly by judges such as Sir John Holt and Lord Mansfeld in the seventeenth
and eighteenth centuries. Attempts to codify this mass of case law in the late nineteenth
century produced the Bills of Exchange Act 1882, the Sale of Goods Act 1893, the Marine
Insurance Act 1906 and the Partnership Act 1890, all of which either remain in force or con-
tinue to infuence current law. Since these statutes arose out of the decisions of the courts
(even if they did not always reproduce those decisions), they tended to refect the fact
that the bulk of those decisions concerned disputes between merchants. This meant that,
broadly speaking, the legislation did not seek to interfere with the freedom of merchants
to make contracts and to organise their business as they saw ft.
Yet this view of contract law as not intervening cannot be taken too far. The 1893 Sale of
Goods Act placed various obligations on sellers and buyers, including implied terms as
to description and quality (see Chapter 5). Moreover, even if non-intervention tended to
dominate the development of the law relating to contracts of sale, there had always been
an element of consumer protection through the criminal law, which imposed penalties for
false measures and the adulteration of food and drink. By the second half of the twentieth
century there was pressure to improve protection for consumers, not just through the
criminal law, but also through the strengthening of consumer rights. This led to legisla-
tion that sought to regulate various aspects of the relationship between consumers and
merchants:
the contract itself (e.g. the Unfair Contract Terms Act 1977)
the goods and services supplied (e.g. regulating the production of certain types of goods to
improve safety and quality)
the merchants who supplied particular goods and services (e.g. through licensing).
The aims were to provide consumers with additional rights, to prevent certain goods and
services from reaching the marketplace, and to control suppliers.

Forasetoflearningoutcomes
relatingtothesyllabus,see
section1.2.

Forasetoflearningoutcomes
relatingtothesyllabus,see
section1.2.
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Clearly, the objectives of the law relating to transactions between merchants (commercial
law) are likely to differ from those relating to transactions between merchants and con-
sumers. Yet, there is no clear distinction between commercial law and consumer law. So,
for instance, these different types of transactions are mixed together in the Sale of Goods
Act 1979 (see Chapters 46). Many have, therefore, argued for the creation of separate
codes of law for commercial sales and for consumer sales (Bridge (2003) 119 LQR 173). This
subject guide is concerned only with commercial sales.
The other problem is that the incorporation of the lex mercatoria into the common law
meant that it lost its international favour. This has prompted a call for the harmonisation
of rules relating to international sales. Within the European Union some strides towards
such harmonisation have been made (although much of the focus has been on consumers).
More broadly, various international treaties and conventions have been drawn up, which
seek to bring some unity to international commercial law. It does not take much thought
to recognise the diffculty of constructing international agreements on such issues and
also the problems of domestic courts around the world in applying such agreements with
any consistency. More successful, perhaps, are the various standard form contracts issued
by international trade organisations and adopted by merchants (e.g. see Chapter 7). For
further discussion of all of these issues, read Sealy and Hooley, pp.1420, 3334, 4358. See
also Bradgate, pp.320. On these texts, see section 1.2.1 below.
Go to your study pack and
read Rule, practice, and
pragmatism in transnational
commercial law by Roy
Goode.
Go to your study pack and
read Rule, practice, and
pragmatism in transnational
commercial law by Roy
Goode.
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1.2 Learningoutcomesforcommerciallaw
When you have fnished studying this module, you should be able to demonstrate that you
have studied in depth agency, sale of goods, international trade and fnance and principles
of secured fnancing.

a Agency
defne the term agent
explain how an agency is created
discuss the scope of the agents authority
explain the rights and obligations owed by the principal and by the agent to the third party
explain the rights and obligations owed by the third party to the principal and to the agent
explain the rights and obligations arising between the principal and the agent.
b Saleofgoods
discuss the approach taken to interpre-
tation of the Sale of Goods Act 1979
analyse the components of the defnition
of a contract of sale
explain the circumstances in which prop-
erty in goods is passed
identify how risk is passed
understand the nemo dat rule
discuss and illustrate the exceptions to
nemo dat rule
explain the duties of the seller to deliver
and the buyer to accept goods
discuss the implied terms in ss.1215 of
the Sale of Goods Act 1979
discuss the relationship between the
different implied terms
outline the limits imposed on attempts
by the seller to exclude or restrict liabil-
ity for breach of the implied terms
understand and discuss the rules on
acceptance
explain the remedies available to the
buyer and the seller where there is a
breach of the sale contract
explain the use of retention of title
clauses and the limits of such clauses.
c Internationalsalecontracts
identify the key characteristics of cif and
fob contracts
analyse the distinctions between cif and
fob contracts
discuss the duties of the seller and buyer
under cif and fob contracts
explain the remedies available to the sell-
er and buyer under cif and fob contracts
understand the general issues involved in
the use of electronic documentation and
the effect of international agreements on
the terms of international sale contracts.
d Payment
defne and identify the characteristic features of a documentary credit
explain the signifcance of the Uniform Customs and Practice for Documentary Credits (UCP)
identity the different types of documentary credit
explain the steps involved in the opening of a credit
analyse the various contractual relationships
discuss the strict compliance and autonomy of the credit rules
explain the rights and obligations of the parties.

Note:Studentswillbeexpected
tobefamiliarwiththeprinciples
ofbailmentsofarasisnecessary
foracompleteunderstandingof
thetopicswithinthesyllabus.

Note:Studentswillbeexpected
tobefamiliarwiththeprinciples
ofbailmentsofarasisnecessary
foracompleteunderstandingof
thetopicswithinthesyllabus.
Movingfromknowledgetounderstanding
In studying for a qualifying law degree, such as the University of
Londons LLB, you need to begin with knowledge and develop under-
standing and the deeper skills required of law graduates. A lawyer
needs to know (or know where to fnd) the law. He or she also needs
to analyse an infnite variety of real-life problems and apply the law
critically to them. To do this you must:
understand the law
have analytical and critical abilities.
To be analytical and critical you need to develop:
autonomy and an ability to learn
a refective approach to your learning
the ability to identify and retrieve legal information from paper and
online sources.
The learning outcomes and activities which we provide in our subject
guides enable you to do develop these skills. There is a simple chart
which expresses the process:
Knowledge base
Learning activities and
sample examination
questions develop skills and
understanding and embed
knowledge in your memory.
You demonstrate your
understanding and skills
in your answers to activities
and sample examination
questions written in your
notebook or ring binder
for the subject guide, and
by entries in your Skillls
portfolio.
Derived from
the syllabus
Learning
outcomes
are the basis
of learning
activities
This is assessed
by portfolio
assessment and
examinations

Movingfromknowledgetounderstanding
In studying for a qualifying law degree, such as the University of
Londons LLB, you need to begin with knowledge and develop under-
standing and the deeper skills required of law graduates. A lawyer
needs to know (or know where to fnd) the law. He or she also needs
to analyse an infnite variety of real-life problems and apply the law
critically to them. To do this you must:
understand the law
have analytical and critical abilities.
To be analytical and critical you need to develop:
autonomy and an ability to learn
a refective approach to your learning
the ability to identify and retrieve legal information from paper and
online sources.
The learning outcomes and activities which we provide in our subject
guides enable you to do develop these skills. There is a simple chart
which expresses the process:
Knowledge base
Learning activities and
sample examination
questions develop skills and
understanding and embed
knowledge in your memory.
You demonstrate your
understanding and skills
in your answers to activities
and sample examination
questions written in your
notebook or ring binder
for the subject guide, and
by entries in your Skillls
portfolio.
Derived from
the syllabus
Learning
outcomes
are the basis
of learning
activities
This is assessed
by portfolio
assessment and
examinations

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1.3 Approachingyourstudy
This guide is designed to direct you through your study of commercial law. You should
work through each chapter in turn. The guide has been written to enable you to build
up your knowledge. Each chapter is written on the assumption that you have read and
understood previous chapters. You should not, therefore, dip into the guide: your aim is to
understand the whole subject. This requires the ability to stand back and see the structure
of commercial law. Indeed, you will fnd it much easier to understand and remember cases
and statutes if you can see them as part of this larger structure rather than treating them as
unconnected rules. Commercial law has its eccentricities, but, overall, it works because it
has been built up in response to the needs and practices of business people.
You should read each chapter carefully. In each chapter there are activities, which provide
an opportunity to think about and learn to understand the material you have been cover-
ing. You should work through these activities before referring to the feedback at the end
of each chapter. Next, you should read the essential reading, and then look at the cases
and further reading. Make sure you understand each piece of reading and each case before
moving on. If you do fnd a case or piece of reading diffcult to understand, go back to
the subject guide or move on and return to the piece of reading or case later. Refect on
whether you do understand each part fully. Ask yourself diffcult questions. Finally, you
should attempt the sample examination question at the end of each chapter.
Commercial law is a rapidly developing area, so you must keep up to date. How you can do
this is discussed below. Access to a good law library is, of course, very helpful, but for those
who do not have such access the Internet provides a rich source of information, if it is used
carefully.
1.3.1 Essentialreading
Commercial law textbooks fall into two broad groups: those books that seek to cover a
wide area of the subject and those that focus on a particular topic, such as agency or sale.
Primarytextbook
Sealy, L.S. and R.J.A. Hooley Commercial law: text, cases and materials. (London: LexisNexis
Butterworths, 2003) third edition [ISBN 0406950032].
This book will be referred to throughout the guide. It resembles a portable library in
that it contains extracts of leading cases, legislation, articles and editorial commentary.
References to Sealy and Hooley are references to this textbook. Throughout the book the
authors ask questions, which you should attempt to answer.
Much of your study will be devoted to the readings from this book, although at various
points you will be directed to other materials. You should also try to read as many of the
leading cases in their original form. Remember that, while this excellent book has been
compiled by two of the leading commercial lawyers, it is only their particular view of what
is important.
Othertextstoconsult
There are various excellent books on the general area of commercial law to which refer-
ence will be made in this guide.
Goode, R. Commercial law. (London: Penguin Books, 2004) third edition
[ISBN 9780140289631].
This is an important work by one of the leading commercial lawyers of the last thirty years.
It will be referred to as Goode throughout this guide.
Bradgate, R. Commercial law. (London: LexisNexis Butterworths, 2000) third edition
[ISBN 9780406916039].
Brown, I. Commercial law. (London: LexisNexis Butterworths, 2001)
[ISBN 9780406024340].
In addition, there are books that cover particular aspects of commercial law. These are
referred to in the relevant chapters.

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Statutebooks
Legislation is frequently amended, so it is important to refer to up-to-date versions of legis-
lation. It is, therefore, convenient to have a statute book in addition to the other books.
Rose, F. Blackstones statutes: commercial & consumer law. (Oxford: Oxford University Press).
A new edition is published each year.
Legaljournals
The subject guide and the textbooks refer to articles published in various journals in the UK
and abroad. You should try to read those referred to in the subject guide, but you should
also try to follow up references to journal articles cited in the textbooks where appropriate.
1.3.2 Websites
Used with care, the Internet is a valuable resource.
Cases and legislation:
http://www.bailii.org/ The British and Irish Legal Information Institute: an excellent site that
provides access to full texts of cases and legislation from Britain and Ireland. It also has links
to sites for other jurisdictions.
Recent UK legislation is also available through a government site:
http://www.opsi.gov.uk/legislation/about_legislation.htm
Judgments of the House of Lords since 1996 are also available from:
http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm

Theskillsrequiredtobecomeagraduate
Learning skills are important, though mostly underemphasised. Please refer to
the guide Learning skills for law.
These are some of the deep learning skills that we expect you to acquire. The
ability:
to discern themes and patterns in large amounts of disparate information
to scan large amounts of written materials to draw out argumentative threads
to explain the different sides of a controversial issue
to make, apply and criticise precise distinctions
to separate rapidly the relevant from the irrelevant
to think logically
to think critically
to research
to plan
to communicate, to argue fuently, concisely and persuasively, both orally and on
paper
to concentrate, working with speed and stamina
to work independently with initiative and self confdence
to work co-operatively, to lead and to support with sensitivity.
Self-refective skills are also essential the ability:
to learn from experience
to gauge how the learning experience is working and to identify weaknesses
to use the above skills to evaluate your knowledge
to use those skills to analyse and solve problems.
As you progress with your studies, you should be thinking about how you can
develop these skills.

Needed: deep learning

Many of the answers we
receive in the assessment
every year appear to refect
surface learning and not
deep learning.
Are you prepared to take on
the challenge?
Needed: deep learning
Many of the answers we
receive in the assessment
every year appear to refect
surface learning and not
deep learning.
Are you prepared to take on
the challenge?
Theskillsrequiredtobecomeagraduate
Learning skills are important, though mostly underemphasised. Please refer to
the guide Learning skills for law.
These are some of the deep learning skills that we expect you to acquire. The
ability:
to discern themes and patterns in large amounts of disparate information
to scan large amounts of written materials to draw out argumentative threads
to explain the different sides of a controversial issue
to make, apply and criticise precise distinctions
to separate rapidly the relevant from the irrelevant
to think logically
to think critically
to research
to plan
to communicate, to argue fuently, concisely and persuasively, both orally and on
paper
to concentrate, working with speed and stamina
to work independently with initiative and self confdence
to work co-operatively, to lead and to support with sensitivity.
Self-refective skills are also essential the ability:
to learn from experience
to gauge how the learning experience is working and to identify weaknesses
to use the above skills to evaluate your knowledge
to use those skills to analyse and solve problems.
As you progress with your studies, you should be thinking about how you can
develop these skills.

Needed: deep learning

Many of the answers we
receive in the assessment
every year appear to refect
surface learning and not
deep learning.
Are you prepared to take on
the challenge?
Needed: deep learning
Many of the answers we
receive in the assessment
every year appear to refect
surface learning and not
deep learning.
Are you prepared to take on
the challenge?
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1.3.3 UseyourPortfolio/LearningJournal
Throughout this guide you will notice certain portfolio prompts. In the London programme
we have a portfolio that any student who wishes to obtain a QLD for England and Wales
must develop and present for assessment in their fnal year. This is to demonstrate the
subject specifc and transferable skills students will attain. We are not saying that students
who do not complete a portfolio do not have these skills but such students will not
formally have demonstrated these skills in an assessed mode. From your second year you
should use the online e-portfolio system to compile your evidence base and refection on
your evidence. However, by portfolio we also mean something more simple a learning
journal which would be a worthwhile experience, whether or not you are going to submit
your Skills portfolio for assessment, to build. This can be as simple as a ring leaf folder,
making entries in this will give the opportunity to refect on your learning, to map out the
process and gauge whether you are meeting the learning objective for the subject.
The important aspect here is refection: in the other frst year subject guides you may fnd
refection prompts rather than portfolio prompts but what unites these is the belief that
refection is necessary for authentic self-understanding and learning processes that last.
Throughout the guide we will give prompts, indicated by this symbol:
At the end of each chapter (with the exception of this one) there is an opportunity for you
to refect on and review your understanding of the issues contained in that chapter. You
are strongly advised to carry out this review and to go over any points which you still feel
unsure about before proceeding to the next chapter.
Begin your portfolio
or learning log by putting
down some notes as to
the main messages in this
chapter. In distance learning
the institution here London
teaches through the
learning resources. We try
to communicate with you
through the messages in
this and the other texts and
online materials we make
available to you. What are
the main messages in this
chapter?
Begin your portfolio
or learning log by putting
down some notes as to
the main messages in this
chapter. In distance learning
the institution here London
teaches through the
learning resources. We try
to communicate with you
through the messages in
this and the other texts and
online materials we make
available to you. What are
the main messages in this
chapter?
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1.4 Theexamination
Important: the information and advice given in the following section is based on the
examination structure used at the time this guide was written. However, the University can
alter the format, style or requirements of an examination paper without notice. Because of
this, it is essential for you to check the instructions on the paper you actually sit.
1.4.1 Preparation
You need to start your examination preparation at the beginning of the course and not
leave it until the period just before the examination starts. As you proceed through your
studies you should try to summarise the key points in each section. The sample examina-
tion questions in this guide will give you some indication as to how to approach different
types of examination questions, but there is no substitute for practice. You should, there-
fore, practice old LLB examination questions.

Put yourself under examination conditions.

Give yourself only 45 minutes to answer each question, including reading of the question
and planning time. Do this throughout your course to familiarise yourself with writing
examination answers.
You should plan out each week of study in advance using a diary allowing at least eight
hours of study for commercial law each week. You should also allow time for a review of
the weeks work and at the end of the month allow some time for a wider review of what
you have achieved in the preceding month. At the same time, you need to balance your
studies. You will not be able to study or to perform in the examination, unless you are
physically and mentally well, so do not overwork. It is important that you take time away
from your studies.
Two months before the examination you should draw up a revision schedule. At this point
you should have a good set of notes from which to revise. Students are often tempted to
try to guess what questions will appear on the examination paper on the basis of previous
years and limit their revision to those topics. This is always dangerous because you limit
the choice of questions that you can do and because examiners can mix different topics
into one question: e.g. an agency issue may be mixed in with a question on a sale contract.
It is also dangerous to try to identify the format of future examination papers on the basis
of past commercial law papers because, as has been mentioned, this guide introduces a
slightly revised course.
1.4.2 Onthedayoftheexamination
Try to make sure that you take the night before the examination off and do something
relaxing. If you have to revise make sure you fnish at a reasonable time, do something
else and then get a good sleep. Remember that your brain can get tired, like your body. If
you ran a marathon you would not expect to be able to repeat the exercise the next day.
The same is true of the brain: if you exhaust yourself the day before, you are likely to fnd
yourself unable to perform in the examination. On the morning of the examination go over
your revision notes briefy then go to the examination without them. Make sure you give
yourself plenty of time to travel to the examination. It is also advisable to eat and drink
normally before an examination.
When the examination starts read the whole paper question by question very carefully and
then decide which questions to attempt. Take your time over this. Do not just pick your fa-
vourite topic: consider whether another question is easier to answer even though it might
not be your favourite topic. Make sure that you attempt four questions. Before you begin to
write your answers, make a brief plan about how you will answer each question.
It is important to be strict with yourself about how much time you spend on each question.
Do not make the mistake of giving yourself too little time to answer the last question.
Allow 510 minutes to read the examination paper and then 40 minutes for each question,
including 5 minutes for planning your answer. Do not go over this 40 minute time limit.
Students often fail to realise that it is much harder to improve your mark on a question that
you have been answering for 40 minutes than to score marks on a new question. At the end
you will have about 10 minutes to go over your answers.

TheseareavailablefromtheLaws
website.

TheseareavailablefromtheLaws
website.
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1.4.3 Answeringthequestion
It cannot be emphasised enough that you must answer the question that has been asked
and not one that you hoped would have been asked. You may get no marks at all or serious-
ly endanger your ability to pass a question if you do not observe this simple rule. You must
ask yourself, What is this question seeking to discover? It will be rare for you to be asked
simply to describe an area of law or provide a list of rules. As a lawyer you are being tested
on your ability to analyse and to argue. Lawyers do not provide unsubstantiated opinion,
they reason from authority. They acknowledge the weaknesses and strengths in the argu-
ments they present. They are also looking to see how the law might develop.
In general you will encounter two types of questions, the problem and the essay. The
sample examination questions at the end of each chapter in this guide provide illustrations
of both types and in the feedback to those questions you will fnd guidance about the ap-
proach you should take in answering them.
In problem questions you are required to apply the law to the facts of the question. Work
through each word of the problem. Identify the issues and apply the relevant law to them.
If you think there is absolutely nothing of interest in a sentence, you may well have missed
the point. The other diffculty with problem questions is that the law may be uncertain or
you may not be given quite enough facts. This requires you to discuss the various possibili-
ties. Where appropriate, you can point out defects in existing rules. Finally, the question
may ask you to advise a particular person identifed in the problem. This simply means that
you should answer the question by looking at it from the perspective of that person: do
not, as some students do, write this person a letter.
While problem questions lead you to the areas of law that the examiner wishes you to dis-
cuss, essay questions provide more scope for discussion. You need, therefore, to be careful
to focus on the question being asked. You must identify what it is that the essay question
is seeking. Often you are invited to discuss an assertion about the state of the law. Do not
simply say to yourself, Oh good! This is a question on the nemo dat rule and its exceptions,
and then set about a description of the rule and the exceptions. It is unlikely that this is
what the question is asking you to do. (See Chapter 4 for the nemo dat rule and a sample
examination question).
Whether it is a problem or an essay question, you should constantly ask if you are answer-
ing the question that has been asked.
Finally, a lawyer argues from authority (case, statute, academic writing, etc.) and you must
cite the authorities on which you rely. You do not need to give the actual reference of the
source as long as you make it clear which source you are using (e.g. providing the name
of a case without giving its date or report reference is enough). Students often worry
about how many cases, statutes, etc. they should cite. Studying commercial law does
involve reading a lot of cases, but in the examination do not try to impress the examiner
with a long list of case names. Often a point can be made through citing one or two cases.
Remember that the examination primarily tests your understanding of the issues and not
your ability to memorise dozens of case names.
Reminder of learning outcomes
By this stage you should be able to:
approach the study of commercial law in a systematic way
understand how this subject guide is organised and the various elements of which it is
comprised
understand how to develop your learning skills
understand how to approach the examination.