Felony Murder

I figured with how young this man really is that he would want to further his career and make as much money as possible. So with joining a law firm and not representing himself he would get more cases and therefore make more money. In the book he was a very smart man and if you had a weakness he found it. That’s why I put down big name cases with great outcomes for the plantiffs or defendants. Also with big name cases his chances of getting the job at the law firm will increase. The job in the middle is actually the case that went on in the story and was what the book was all about. Obviously I couldn’t put that as his first case ever because that was a big case and he wouldn’t have got it with that little experience even though he came out of a great college. I put down the Pete Rose case because he showed great interest in the book about sports. Every time he was stressed out after a long day at work he would turn on the Knicks game to relax and go to sleep. So I made a guess that he is interested in all sports. I put Harvard down for his school because that is a great law school and he is a very smart man. Also when doesn’t Harvard look good on a resume? In the interests I put down Law and Order because those are two shows that have to do with law and might help him in his work. For the novels they make any one look smart and the more you read the more your mind expands. As, for Sport Center his interest in the Knicks is very obvious even if he falls asleep during the game? Sport Center is a great way to check the score he missed the night before.

Is the provisional agreement binding?

The provisional agreement is binding upon the parties upon its execution. Under the test provided by Lam Tam Yi v Chak Wai Man (1993) 1 HKC 537, the intention of the parties to make the provisional agreement binding makes the agreement binding. In the given case, the provisional agreement contains the intention of Janice to sell the real property described and the intention of Rachel to purchase the agreement. However, the parties also agreed that the provisional agreement is something that precedes the signing of the formal contract. As such, the terms of the provisional agreement governs the actions of the parties to the extent of Janice Wong and Rachel Lam's compliance with their respective responsibilities based on the terms of the provisional agreement to reach the signing of the formal contract. As such, since the terms of the provisional contract involved the payment of the deposit and purchase price, then Rachel Lam carries the obligation to make payment in order to execute the terms of reach the signing of a formal agreement. However, since the provisional contract constitutes a preliminary agreement intended to the replaced by the signed formal and final purchase agreement, the signing of the formal purchase agreement is necessary to make claims for the fulfilment of the contract or compensation for breach. This means that when the formal sale agreement has not been signed, the parties can make claims limited only to the rights and remedies under the provisional agreement. Section 3 under the Conveyancing and Property Ordinance 1984 provides that no legal action can be made regarding a land conveyancing contract if the agreement was not made in writing. This is true for a provisional sale agreement. In the given case, assuming that the provisional sale contract was made in writing, then the parties are compelled to fulfil their respective obligations such as payment and showing of proof of ownership. However, since the formal contract for the purchase of the real property was not signed, then the parties cannot proceed with the actual sale or sue for breach of contract of sale. What apply are the terms of the provisional agreement such as the return or forfeiture of the deposit depending upon the terms of the provisional agreement.

(b) The vendor has offered an assignment by way of gift, dated 15 March 1994, as the intermediate root of title to the property.

(i) Explain the meaning of "intermediate root of title".

Understanding the 'intermediate root of title' needs to consider the meaning of 'root of title'. According to Section 13(1) of the Conveyancing and Property Ordinance 1984, the root of title is the government lease, which constitutes the evidence of title to the land being subjected to conveyancing. As such, in purchasing real property, the buyer should require the vendor to produce the government lease. However, Section 13(2) provides that mortgage by assignment or the legal charge relating to interest in the property subject to conveyancing may be demanded as proof of the legal right of the vendor to sell the real property. While, section 13(1) explains the root of title, Section 13(2) describes the intermediate root of title. As such, an intermediate root of title constitutes proof of the interest of the vendor in the land being conveyed to support the validity of the sale of the real property as well as the intention of the vendor to transfer the property to the buyer subject to the terms of the agreement between the parties. Moreover, the intermediate root of title constitutes the point that leads to a chain of transactions eventually leading back to the root of title. Choosing the intermediate root of title to be shown as proof by the vendor is key to tracing the vendor's interest in the property subject to conveyancing and the validity of the title in case of the actualisation of the formal agreement of sale of the real property. The point in the legal chain concerning the real property should be carefully considered, which under the law involves either assignment by mortgage or legal charge.

(ii) Explain whether or not you would accept the 1994 Assignment as the intermediate root of title to the property.

I will not accept the 194 Assignment as the intermediate root of title to the property. The Conveyancing and Property Ordinance 1984 provides that if the sale is made after a period of at least 15 years from the grant of the government lease, the valid evidence of real estate title is an assignment. Janice Wong offered an assignment by way of gift, which was intended to constitute the intermediate root of title to the property being sold to Rachel Lam. Although the proof of title was an assignment, the law specifies the assignments considered an evidence of title, which is by way of either mortgage or legal charge. In applying the rules of legal construction, the specification means that the law intends these as the valid forms of assignment as proof of title so that an assignment by gift does is entirely different from these specific forms. As such, the assignment by gift cannot constitute an intermediate root of title.

(c) The Government Lease provides that any building erected on Lot 168 shall not exceed 35 feet in height. Handsome Building is an 80-foot building of 10 storeys, erected in 1973.

Should Rachel’s solicitors raise a requisition on title?

Rachel's solicitors should raise a requisition on title because of the need for further documents to prove title as in Tao Qin v Ho Wai Leung (2005) HCA 1336. First, as mentioned earlier, the intermediate root of title offered by the vendor is not validly acceptable. As such, there is need to demand additional documents to provide a stronger evidence of ownership. Second, the non-compliance with the terms of the government lease for Lot 168 could constitute a problem in the conveyancing of title especially when the increase in the height of the building does not form part of the lease agreement renewed with the new law in 1973 so that this is covered by the new rules.

The Agreement

The Agreement provides that completion shall take place at the offices of the Vendor’s solicitors at No. 3, Pump Yard, Admiralty, Hong Kong, or as they may direct, on the 15th day of December 2007.

Assuming that Rachel tendered a Banker's Draft for the balance of the purchase price at 6.00 pm on the 15th of December, would Janice be entitled to forfeit the deposits on the ground that the balance of the purchase price was paid too late?

Janice would not be entitled to forfeit the deposits on the ground that the balance of the purchase price was paid too late. The payment made by Rachel using a Banker's Draft was made on the date agreed upon the parties, which is on the 15th of December. There was no time specified by the parties so that it appears that the exact time of payment is not deemed as important in determining compliance with payment. In applying equity, it should be considered whether the time of payment was reasonable. In the given case, the agreed place of payment was at the office of the Solicitors of the Vendors. As such, the reasonable time of payment is within office hours. This means that if 6.00 pm constitutes past the reasonable or common office hours for Solicitors, then Janice could forfeit payment because payment was delayed. However, it should also be considered that if the time of payment was of due importance to the vendor, this could have been included as a term of the provisional agreement. Since there was no term in the provisional agreement giving Janice the right to forfeit payment upon non-payment within a particular time, then Janice cannot forfeit deposits because the purchase price was not paid on time. Valid reasons for the forfeiture of the deposits, when the provisional agreement does not specify an exact time limit for payment, include bouncing cheques or the unreasonable time of payment such as payment at midnight of December 15th when Solicitors offices are expected to be closed. Moreover, a Bank Draft can be considered as equivalent to cash so that payment within a reasonable time, provided that 6.00 is can be considered a reasonable time with the agreed day would constitute effective payment by Rachel so that Janice cannot forfeit the deposit on account of late payment.

(b) Would your answer to (a) differ if Rachel had tendered a personal cheque?

Yes, the answer would be different if Rachel had tendered a personal cheque. Cheques in general are considered as conditional modes of payment that constitute effective payment only when honoured. However, there is a difference between a Bank Draft and Personal Cheque, with the former providing lesser risk because the cheque is drawn against the bank's account instead of the personal account of the buyer. As such, except in exceptional cases of the bankruptcy or closure of the bank against whom the Bank Draft was drawn, the parties receiving payment through a Bank Draft has a greater chance of being paid. In the case of personal cheques, there is greater risk because the payer's account with the bank may not be sufficient to pay the amount contained in the cheque. A Bank Draft is commonly considered as akin to cash while a personal cheque is not. In terms of the time of payment, a personal cheque is subject to the acceptance or acquiescence of the vendor so that if the vendor accepts the cheque as payment, then payment is deemed to have been made within the day subject to clearing. Since payment by cheques constitutes common practice, the receipt of the cheque by the vendor within the specified time or reasonable time within the given day of payment constitutes compliance with the time of payment but subject to clearing. The time of payment depends either on the time of receipt of the cheque or the clearing of the cheque so that in the given case, payment can be considered as validly made during the appointed day but claims or remedies in relation to payment such as the forfeiture of deposit depends upon the clearing of the cheque. This is in addition to the lack of a clear and explicit term in the provisional contract that would support the importance of time in payment.

(c) For the purpose of this question only, assume that the Agreement provided for completion to take place on the 15th day of December at or before 5.00 pm. Rachel tendered a Banker's Draft for the balance of the purchase price at 6.00 pm.

Janice has terminated the Agreement and forfeited the payments made by Rachel. The order is rising and Rachel wishes to complete the transaction. Is Rachel entitled to an order of specific performance?

Rachel is not entitled to an order of specific performance for a number of reasons. One, the parties has not signed the formal purchase contract, which means that the parties are governed by the provisional contract, which provides their respective responsibilities for executing the agreement intended to pursue the signing of the contract. As such, without a formal contract, Rachel does not have the right to make claims for the completion of the sale by seeking an order of specific performance from the courts. Another reason is that Rachel was not able to make payment on or before 5.00 pm of December 15th. Although Rachel was able to offer a Bank Draft on that day, this was made at 6.00 pm so that Janice has the right to forfeit the deposits and not proceed with the signing of the formal contract. In this instance, time was considered important since it was specifically contained in the provisional agreement. As such, Rachel should have complied with the time limit to prevent the forfeiture of the deposit and ensure the signing of the formal contract of sale.