Business and Law
BUSINESS AND LAW
Introduction
The breaching of contracts and denial of human rights have risen over the past few years due to the lack of enough knowledge. The paper covers several cases whose judgment is based on the Australian common law and consumer acts in the IRAC format
Question 1
Issue: Does Brenda have an action against Steven for the breach of contract?
Rule: According to the Australian contract law, an anticipatory breach of contract can occur from time to time. An anticipatory breach of contract refers to where one party informs the other that they will not deliver what was agreed upon before they are due to fulfilling their part of the contract.
Analysis: Steven had decided to provide the fabric before 12th March and therefore, he should have met the promise. Steven informs Brenda that he sold the material and that he did not fulfill his part of the contract. Therefore, it is termed as an anticipatory breach of contract. Brenda has a case because the anticipatory breach is punishable by the Australian law to allow a plaintiff acquire what they would have acquired if the contract was fulfilled, just as in Hollier v Rambler Motors [1972] 2 AB 71 case.
Conclusion: YES. Brenda has a case against Steven for violating their contract and should be given some remedies to solve the case. The remedies here should be mainly in the monetary form so that Brenda can return the $1000 to Gloria.
Issue: If successful, what remedies would be available to her?
Rule: Damages claims can be used as a remedy for the breach of contract as stated by the common law. The damage remedies are used as a substitute for the expected performance. Additionally, they are aimed at compensating the plaintiff to make them go back to the position they would have been if the contract was performed properly as expected.
Analysis: Brenda failed to attain the total amount of money that Gloria had promised to pay after she delivered her gown due to inconveniences created by Steven. In that case, Steven should compensate Brenda with damage remedies so that she can pay her client with the $1000 she had offered as a deposit. A perfect example is the British Crane Hire v Ipswich Plant Hire [1974] QB 303 case, where the defendant was held liable for any expenses that were used to recover the crane since the deal itself was a contract by law. He should pay some amount of money equal to what Brenda could have acquired from Gloria if the garment was made successfully.
Conclusion: Brenda should be compensated with the damage remedies so that she can gain the income she could have earned if the fabric and gown were delivered successfully as agreed.
Question 2
Issue: Are Bill and Mary in a partnership or joint venture?
Rule: The contract law, as well as the common law, govern a joint venture. On the other hand, the state corporation act and a relevant law that requires the partners to share losses and profits equally regulate a partnership.
Analysis: Partnership laws indicate that each partner must be held responsible for the business actions at all cost. Losses, debts, and profits are shared among the partners since each partner is liable for all business activities. On the other hand, in a joint venture requires that members must be held responsible for their operations, and debts are not owned by a corporation but by an individual. The purpose of the joint venture is to share the cost of the production and get access to the market where members can sell their properties. In our case, Bill and Mary joined hands so that they can share the cost of production and ideas. Each sells the cartons in an individual set up, and all cost of production is a personal affair, just as it was ruled in White v John Warwick [1953] 1 WLR 1285 case, where the company was not liable for personal injuries that resulted in the plaintiff suffering some damages while riding in the company’s premises.
Conclusion: Bill and Mary qualify as a joint venture other than a partnership since they teamed up to share the cost of production, skills and ideas. Additionally, they sell the products to individuals rather than a corporation that justifies them as a joint venture.
Issue: Give reasons and discuss why it is important to distinguish a partnership from a joint venture?
Rule: The contract law, as well as the common law, govern a joint venture. On the other hand, a partnership is governed by the state partnership act and a relevant act that requires the partners to share losses and profits equally (Cavusgil et. al, 2014, p. 9).
Analysis: Many people do not distinguish between a joint venture and partnership. There is a necessity to make a distinction between the two to understand the legal consequences of each. It is also necessary to comprehend the kind of agreements and activities that are involved in each. It is important to realize the aims and intentions, the commitment of parties, profits arrangements and how resources are allocated and shared in each one of them. It is essential to identify the similarities and differences of the joint venture and partnership. Similarities may include that both have signed agreements and that they are formed when two or more people come together to obtain profits (Ricks, 2013, p. 34). Differences include that partnership laws state that each partner is held responsible for the business actions at all cost. Losses, debts, and profits are shared among the partners since each partner is liable for all business activities as well (Cavusgil et. al, 2014, p. 12). On the other hand, in a joint venture, each member is held responsible for the operations, and debts are not a corporation affair, but individual own them, just as it was applied in R & B Customs Brokers v United Dominion Trusts Ltd [1988] 1 WLR 321 case. The purpose of the joint venture is to share the cost of production and get access to the market where members can sell their properties. It is also important to distinguish between them to understand the advantages and drawbacks of each one of them as a separate entity.
Conclusion: It is important to make a distinction between the joint ventures and partnership to understand the requirements in the formation of each. It is important to comprehend the risks and advantages associated with both the joint ventures and partnership. Additionally, it is essential to comprehend the legal consequences, profit arrangements, duration of operation, resources and the aims and intentions of both the joint ventures and partnerships (Ricks, 2013, p. 36).
Question 3
Issue: Explain whether QRZ can rely on its exclusion clause or not.
Rule: If an exclusion clause is attached and signed together with a contract, then a company cannot be alleged accountable for any loss unless consumer rights are inflicted (Lawson, 2011, p. 9).
Analysis: An example of an exclusion clause case is Box 4 Olley vs. Marlborough Court Ltd [1949] 1 KB 532 (Lawson, 2011, p. 6). The case was between Marlborough Court Hotel, Mr., and Mrs. Olley, who visited the hotel for a week. After the arrival in their room, they found a notice indicating that the hotel owners will not be held responsible for anything lost in the room unless the property is in the hands of the manager. However, some jewelry, clothes, and a hatbox were stolen. They filed a case against the hotel to claim the value of what they lost. In the court, the judge argued that the only way of proving that the hotel had sensitized their customers on the issue was a signed document. Another way is to provide proof that the clients knew about the matter before they paid, was either through oral or written communication. Therefore, since the couple saw the notice after they had already signed the contract, it was not part of the deal. In that case, the company’s appeal was dismissed, and was held responsible for negligence and thus, the couple had to be compensated. In Curtis v Chemical Cleaning Co [1951] 1 KB 805 case, the same ruling was applied, where the court ruled that the cleaners were not liable for the clothing’s damage because the assistant had defiled the scope of the exemption clause.
In our case, the plaintiff had signed the contract that included the clause that acts as evidence that he approved the deal. However, the driver can be held responsible for misleading the old man, which can be termed as an infliction of human rights.
Conclusion: The QRZ motors cannot rely on the exclusion clause to help them in this case.
Issue: In your answer, discuss the position under the common law of contract and the Australian Consumer Law.
Rule: If an exclusion clause is attached and signed together with a contract, then a company cannot be held liable for any loss unless consumer rights are inflicted. The common law and the consumer law protect a plaintiff's rights when cases of negligence and denial of human rights are experienced, during the contract signing. Chapter 2 of consumer legislation and Section 18 outlaws individuals in a trade or any business from deceiving or misleading their customers. The common law states that parties are obliged to do what it takes to ensure that a contract is performed as long as the actions are reasonable and not misleading.
Analysis: The common law fights for the rights of the citizens in partnership with Section 18 of the consumer law (Law, 2010, p. 234). Therefore, the driver can be said to have misled the client into signing the contract. The driver should have interpreted the terms stated in the contract that include the exclusion clause so that the customer could have understood before signing it. According to Chapter 4 of the Consumer Acts, the driver can be termed as a criminal after having misled a customer and can be held responsible for his or her actions. Chapter 5 of the Consumer Acts states that remedies and enforcements can be used for any breach of contract. Therefore, the old man can claim to be compensated in the court of law under the consumer law, a method of civil penalties. The universal law indicates that parties can do anything reasonable to perform a contract (McDonald, 2005, p. 443). The law has an exception that, it can be so if only what is done is reasonable, not contradicting and efficient (McDonald, 2005, p. 444). The Donoghue vs. Stevenson case gives a perfect example of when a court of law can decide not to apply a precedent case, if there needs some improvement in law, thus allowing some exceptions as well. The driver breached the requirements of the common law by misleading the client. A penalty or a legal claim can be filed against the motor company, according to the implication of the common law, just as in the Imbree vs. McNeilly case, where the court ruled that a learned driver has an obligation towards his or her client.
Conclusion: The customers can request companion since the exclusion law cannot work in this case due to the negligence witnessed.
Question 4
Issue: Is East End Four Corners Supermarket liable in negligence for John’s injury?
Rule: The Australian civil liability acts states that a confirmation of negligence can be in four forms. The four forms include: if the defendant owes a plaintiff a duty of care if the defendant breaches a duty of attention if an injury is caused by neglect of duty and if the plaintiff is injured. However, this is exceptional in cases of contributory negligence (Griggs, 2011, p. 45).
Analysis: In the case involving John, the supermarket can be held responsible for negligence just as in the Morgan & Morgan case, where the medical practitioner neglected the patient, and was charged liable for the damages that resulted. John, the plaintiff, was injured on the business premises due to pills. The cause of the spills is the employees’ failure to perform a duty of care where any spills should be rectified as soon as they occur to avoid accidents in the supermarket. There was a breach of duty by the manager because even after an employee failed to turn up, the manager should have assigned another employee to clean up the spillages. Lastly, John was injured as the result of neglect of duty that fulfills the four rules that justify a case of negligence. However, John could have looked down before stepping on the floor. He was texting his wife as he walked. Instead, he could have stood in a corner to call her to avoid the mess. Therefore, he cannot term the supermarket answerable because it was a case of contributory negligence since he failed to look out for his personal safety (Griggs, 2011, p. 45).
Conclusion: The End Four Corners Supermarket cannot be held responsible for negligence because John’s case was more of contributory.
Issue: Explain what kind of insurance East Four Corners Supermarket might have in place to cover compensation for customers who are injured on its premises or as a result of faulty products.
Answer: Business premises have various types of insurances that can help them during the time of troubles. Employee liability insurance is designed to protect employees from injuries and protect the business from any damage claims that are caused by employees’ negligence (Dorfman & Cather, 2012, p. 5). Therefore, it protects both the employees and the public who are affected by the negligence of employees. Torts spell out that a business is held liable for any negligence that causes damage or injuries to other people in the business premises; therefore, there is a need for an insurance cover that can help to compensate a plaintiff. A perfect example here is the Falvo v Australian Oztag Sports Association and Anor 2006 case, where the court of law dismissed the grounds on which the plaintiff stated that resulted in the injury during the sport activity.
Question 5
Issue: Discuss whether Tough Mount has an action under the Australian Consumer Law against Bike Hike for Gary’s false statements on Facebook. In your answer, consider whether Bike Hike is liable for Gary’s actions.
Analysis: Section 29 states that misleading the public about the models, history, nature and quality of goods and services is wrong (McDonald, 2005, p. 443). Additionally, developing false representations and testimonials about a person is wrong before the law. It is also wrong to provide false information in advertisements, and the breach of the law can include sanction and civil penalties on the offenders. In Parker v South Eastern Railway (1877) 2 CPD 416 case, the court ruled that the plaintiff could have avoided the damage of his lost bag that he deposited in the railway station of the defendant, if he knew of the existence of the clauses behind the ticket issued after the deposit. Therefore, in our case, if customers are aware of true information about goods, they are likely to avoid damages and thus, should not be misled.
Section 33 of the Consumer Law states that misleading the public about the nature of good, manufacturers and the features of the products is wrong, and an individual can be charged in a court (Law, 2010, p. 245). In Chappleton v Barry UDC [1940] 1 KB 531 case, the plaintiff had no information about the note on the purchased seats, thus did not have any liability. In our case, the consumers were not aware that Gerry was giving them the wrong information and thus, can sue him for any damages. For instance, in our case, Gary misled the people about the origin of the Tough Mounts and gave false testimonials claiming that the marketing manager approved it, thus did not have the true information about the goods. Tough mounts have an action against BikeHike for Gary’s false statements.
Conclusion: Gary can be held liable for his actions that led to misleading the customers about the nature and origin of the goods he advertised on Facebook. The manager can also have an action against him for using false testimonials using his name as the marketing director. Therefore, the total case falls on Gary as an individual and not the company he works for, at all levels.
Bibliography
Law, A. C., 2010. The Australian Consumer Law: A Guide to Provisions.
Dorfman, M.S. and Cather, D.A., 2012. Introduction to risk management and insurance. Pearson Higher Ed.
McDonald, B., 2005. Legislative intervention in the law of negligence: the common law, statutory interpretation, and tort reform in Australia. Sydney L. Rev., 27, p.443.
Lawson, R.G., 2011. Exclusion clauses and unfair contract terms. Sweet & Maxwell.
Cavusgil, S.T., Knight, G., Riesenberger, J. R., Rammal, H. G. and Rose, E. L., 2014. International business. Pearson Australia.
Griggs, L. D., 2011. Australian Consumer Law-An overview, unfair contracts, consumer guarantees and remedies. In Australian Consumer Law (pp. 1-9).
Ricks, V., 2013. Self-Help in the Break-Up of Informal Partnerships. DePaul Bus. & Comm. LJ, 12, p. 259.
