Proposed Constitution
There have been several issues arising from the different dispute settlement approaches adopted by the elder members of the tribe. A new constitution has been proposed to ensure that such issues are resolved. The Constitution aims at assuring that the decision making process involves the use of legal reasoning while determining any issue instead of any other ground to resolve such issues. On the facts here, it has been stated that the decisions taken by the decision makers of the tribe is often contradicting amongst themselves. In order to address this issue, the constitution proposes to introduce provisions that will ensure that decisions must be same for all the issues that are identical and that the decision maker maintains this consistency throughout the decision-making procedure. The proposed Constitution purports to incorporate provisions that will ensure that the issues are determined impartially and with fairness unlike the situation that is described in the scenario where the eldest members are often biased in regards to the family members.
Further, the new proposed Constitution also purports to incorporate secondary rules to determine issues arising due to the existing primary rules. An Executive Body shall be established as per the Constitutional provisions that shall be empowered to decide whether the decision taken by the decision makers of the tribe is genuine. The proposed constitutional provisions shall permit amendments of rules periodically based on the changing needs and circumstances of the society. Further, in order to determine the genuineness of the decision taken by the eldest members of the tribe based on the evidences adduced in each case, a judges panel shall be formed. Thus, the Executive body shall enforce the decisions whereas the judges’ panel shall determine whether the decisions are based on the evidence adduced for each case.
The proposed Constitutional provisions demonstrate Professor Hart’s three-tier legal theory. This is inferred from the fact that the new constitutional provisions has incorporated the rule of recognition in terms of secondary rules that aims at determining issues emerging from the primary rules. The provisions also included the rule of change theory which is evident from the provisions permitting timely modifications in the existing rules as per the changing requirement of the community. Additionally, the proposed Constitutional provisions also ensure that such changes are in compliance with the Constitutional provisions itself. The establishment of the Executive body and the panel of judges to enforce the decisions of the decision makers and to ensure that they are determining issues impartially epitomize the significance of the Hart’s legal theory.
Misrepresentation of Facts
The incorporation of the rule of recognition and the rule of change implies that the secondary rules shall recognize the issues emerging from the primary rules and will make necessary modifications, which shall be enforced by the Executive body and panel of judges to ensure its compliance with the Constitutional provisions. This establishes the Hart’s theory regarding the presence of a close connection between the rule of change and rule of recognition within the legal system of a country. The formation of the panel of judge incorporates the provisions of adjudication into the proposed constitution that was introduced to the tribe members. The main purpose to establish a judge panel is to make sure that the eldest members of the tribe who are the decision-makers determine the issues based o its evidence and impartially without violating the existing statutory rules.
The proposed Constitutional provisions are similar to the provisions that are already existing within the Australian Constitution. This is because it reflects the incorporation of three-tier legal system that has been introduced by Professor Hart. The Australian legal system demonstrates consistency in its decision making process through the existing Common Law precedents. The legal system of the nation promotes equality before law and article [51] of the Australian Constitution upholds the supremacy of the Common law principles over the legal statutes. This is evident from the fact that in case of any contradiction between the common law principles and the statutory provisions, the principles of Common law shall prevail over the latter.
As per the given facts, the primary issue that must be determined is that if free consent form an integral part to render a contract as enforceable at law, particularly, when the offeror misrepresents facts to form a contract. Misrepresentation of facts refers to a false statement that an offeror makes to an offeree deliberately to persuade him to enter into a contract of which such statements does not form a fact. This principle was established in the case of Smith v Land & house Property Corp [1884] 28 CH D7.
There are certain requirements that must be met in order to succeed in a claim for misrepresentation of facts. Such requirements include:
Statement must be false- the aggrieved party must establish that the statement made by the offeror is false and is related to the contract. However, such statement must not amount to mere opinion or any future opinion. Further, a false statement made with respect to any future events, it shall not amount to misrepresentation and the aggrieved person is unable to bring any legal action against such statement as was observed in Esso Petroleum v Mardon [1976] QB 801.Furthermore, no legal action can be brught against any offeror if he makes any false statement with respect to any law in force as was ruled in Solle v Butcher [1950] 1 KB 671. Moreover, another exception to this requirement is that where a statement made by an offeror is not false but due to certain change in the circumstances, the fact becomes untrue; no legal action can stand against such person provided the person has revealed the truth to the offeree.
Sale of Goods Act 1954 and Implied Terms
Misrepresentation must be material in nature- in order to bring a claim against the offeror for misrepresenting facts, the aggrieved person must establish that the misrepresentation of facts was material in nature which implies that it is sufficient to provoke the offeree to for a contract as was ruled in the Museprime Properties v Adhill Properties [1990] 36 EG 114.
Reliance on the misrepresented facts- In Horsfall v Thomas [1862] 1 H&C 90, the aggrieved party must establish that he has believed and relied on the misrepresented statements that has been stated by the offeror which induced him to enter into the contract with the offeror.
In the legal parlance, three forms of misrepresentation exists namely,
- misrepresentation by negligence;
- misrepresentation by fraud;
- innocent misrepresentation;
Generally, a claims for misrepresentation do not arise if the aggrieved party has not relied on the false statements at the first place but such rule cannot be used as an defense in case, the misrepresentation amounts to fraudulent misrepresentation as was held in the case of Pearson v Dublin Corp [1907] AC 351. A fraudulent misrepresentation arises when an offeror deliberately induces the offeree to enter into a contract by falsely representing all the facts that is not a part of the contract as was explained in Derry v Peek (1889) 14 App Cas 337. However, the remedies available to the aggrieved party include rescission of the contract at the option of the misrepresentee or compensation for the loss suffered.
As per the facts, it is assumed that the contract between Barry and Angelo includes the essential elements of a contract such as offer, acceptance and consideration. The presence of these elements has led to the formation of a valid contract. In the advertisement, Barry stated that his business did not have any competitor and that it earns almost $20000 per month. These statements were sufficient to allure any interested party to purchase the business.
Now, as mentioned to bring a legal action against Angelo for misrepresenting the facts and committing fraudulent misrepresentation, Barry must establish the above mentioned elements. Firstly, in regards to the falsely misrepresenting of facts, Barry may state that both the statements made by Angelo with respect to the business were false. After the business was purchased it was found out that Angelo has misrepresented the facts related to the business and that both the statements were false. There were competitors of the business within the same shopping village and the monthly income was not more than $13000. In addition, Angelo was himself aware of the condition of his business, in spite of which he falsely represented the facts that were false only to induce Barry to enter into a contract with him to purchase the shop.
Secondly, in regards to material nature of such statements, it can be stated that the statements were materially related to the contract and was not merely any opinion. Thirdly, in regards to the reliance of the aggrieved party upon the false statements of Angelo, they were sufficient to induce him to form a contract.
Hence, based on the decision in Derry v Peek, Angelo has committed fraudulent misrepresentation against Barry. Therefore, he is liable to pay compensation to Barry or Barry may withdraw the contract rendering it voidable.
The issues arising from goods and services within Australia are governed by the Sale of Goods Act 1954. The statute imposes obligations upon the sellers to supply goods of acceptable quality and those that are safe under section 19 of the statute. The guarantee to supply good quality goods amounts to implied term, which forms an integral part of any contract. Implied terms are those terms, which is obvious that it should be complied with and there is no need to expressly mentioned about the terms within the contract. The significance of an implied term has been recognized by the court in the Moorcock case [1889] where it was ruled that implied terms are essential to perform the contractual obligations.
Besides the statutory provisions, the Common law principles also identify the importance of implied terms within a contract. In case of breach of implied terms, the aggrieved party is entitled to compensation for the loss, injunction and rescission of the contract. The court in Addis v Gramophone [1909] AC 488 ruled that any person violating the contractual terms should be entitled to remedies in the form of damages or rescission of the contract.
Barry formed a contract with Angelo to purchase his business shop that also included a loader and a van. Subsequently, Barry realized that Angelo falsely misrepresented all the facts about the business, which had induced Barry to purchase the business. The statements included absence of competitor of the business and monthly income of the business being $20000. Later, it was found that the business had competitor and the monthly income was much less than Angelo stated.
These amounted to fraudulent misrepresentation for which Barry is entitled to seek damages for the loss he suffered due to the contract or he may withdraw the contract. However, besides making false statements regarding the competition and monthly income of the business, Angelo also provided a loader and a van, which was part of the business as the loader was used to load vegetables in the van. Now, the loader was damaged and required replacement whereas the van did not belong to Angelo and was only given to him on lease.
Now, as per section [19] of the SoGA, the seller is entitled to provide goods of acceptable quality, but, here, the loader was damaged and in addition, Angelo had to incur expenses to fix the loader. Further, he had to pay an amount of $500 to the person who had given the van on lease, thus, amounted to contravention of the statutory provision of the SoGA.
The significance of implied terms has been recognized in the Moorcock case where the court held that breach of implied terms should attract penalty in the form of rescission of the contract or compensation for the loss suffered by the aggrieved party. Here, Angelo stated that the loader as fine but it was found to be damaged which amounts to an infringement of the implied term. This is because, the loader was an important part of the business as it was used to load vegetables into the van and a damaged loader is a breach of the obligation imposed upon the seller under the Sale of Goods Act 1954.
Furthermore, the van also did not belong to Angelo and was only provided to him on lease. He did not make any disclosure about the van or the loader apart from making false statements regarding the monthly turnover of the business and the absence of competitor. Under both the circumstances, Angelo was aware of the statements to be false, in spite he deliberately misrepresented them to induce Barry to enter into the contract with him to purchase his business.
Based on the decision given in Addis v Gramophones case, it can be inferred that Angelo has committed fraudulent misrepresentation and a violation of a contract by failing to comply with the implied terms under section [19] of the Sale of Goods Act 1954.
- Hello Mr. Barry, I am () and I would like to provide certain necessary information with respect to the contract that you have entered into with Mr. Angelo.
- The contract that is formed between You and Mr. Angelo, has all the essential elements of a contract that is necessary to render it as valid and enforceable in the court of law. It has a valid offer, acceptance and consideration to purchase the vegetable shop of Mr. Angelo.
- I am also aware of the fact that the agreement between you and Mr. Angelo includes a provision where it is clearly stated that he do not have any competitor in his vegetable business.
- I am also familiar with the fact that Mr. Angelo has stated that the monthly turnover of his business is $20000 in his advertisement for sale of his vegetable shop business.
- Nevertheless, after purchasing the business, you found out that the statements made regarding the competitor and monthly turnover of the business was false and misrepresented by Mr. Angelo. You realized that the turnover was only $13000 per month and there was a competitor within the same place.
- I would like to notify you that the statements that were falsely made by Mr. Angelo amounted to fraudulent misrepresentation and he has induced you to enter into a contract with him by misrepresenting the facts about his business.
- The conduct of Mr. Angelo amounted to fraudulent misrepresentation on two grounds. Firstly, the statement that was published in the advertisement was a material statement that has provoked you to enter into the contract with him; Secondly, you entered into the contract relying on the statements that were made by Mr. Angelo regarding the business;
- These two grounds shall be sufficient for the court to assume that Mr. Angelo mad such statements only to induce you to purchase his business;
- The court will also assume that the Mr. Angelo himself was aware of the facts to be untrue but presented them in a manner that would induce any person to enter into a contract with him to purchase his business, in the same way as you have been tempted to enter into the contract;
- The fact that Angelo was aware that he has a competitor and that the turnover of the business was less than what he falsely stated in the advertisement, establishes his intention to make fraudulent misrepresentation and holds him liable for the loss suffered by you due to the contract;
- Nevertheless, under such circumstances, you are entitled to certain legal remedies such as rescission of the contract which implies that you can withdraw or terminate the contract and relieve yourself of the contractual obligations;
- The other remedy available to you is to claim damages for the loss that you had suffered due to the contract as it is one of the consequences of committing fraudulent misrepresentation;
- However, the other option that is available to you against Mr. Angelo is to bring legal action against him instead of rescinding or withdrawing the contract on the ground of breach of promise;
- This option is available owing to the fact that you had entered into the contract with Angelo where he promised you a van and the loader that will be provided along with the shop;
- Nevertheless, after purchasing of the shop, you found out that the van was given to Angelo on lease and that the loader was damaged which required to be replaced. Hence, instead of obtaining benefits from the loader and the van, you had to incur additional expense of $500as a payment to the person who had given the van on lease.
- Further, Angelo had stated that the expenses incurred on the business have enhanced from $8000 per monthto $8500 per month.
- Therefore, you become entitled to claim damages for all the additional expenses that you have incurred on the business including the charges for fixing the van against Mr. Angelo.
- I would like to inform you that when goods are purchased, it becomes implied term for the supplier of the goods to provide goods of reasonable quality which must be fit for the purpose for which they have been bought;
- Implied terms are terms that are not expressly mentioned in the contract but are equally important to perform the contractual obligations. For instance, it is obvious that goods provided by the supplier must be of good quality and need not be mentioned separately in the contract;
- If such important terms are not mentioned within, an agreement it may becomes difficult to carry out the contractual obligations.
- Thus, in your case, the court shall decide in your favor as the loader that was provided to you along with the business, was not fit for its purpose and was damaged for which you had to incur additional expenses. This is because quality and fitness of the goods was an implied contractual term that was necessary to perform the contract;
- Under such circumstances, you are entitled to claim compensation for the expenses that you have incurred for repairing the loader as well as for the additional payment that you have been making with respect to the van to person who had given it on lease. You may also withdraw the contract that yoy have entered into with Mr. Angelo.
References
Addis v Gramophone [1909] AC 488
Davies, Paul S. “CONTRACT FORMATION AND IMPLIED TERMS.” The Cambridge Law Journal 77.1 (2018): 22-25.
Derry v Peek (1889) 14 App Cas 337
Dworkin, Ronald. “Hart’s Posthumous Reply.” Harv. L. Rev. 130 (2016): 2096.
Esso Petroleum v Mardon [1976] QB 801
Feldman, Steven W. “Laws as Implied Contract Terms: The Divergent Approaches and a Proposed Solution.” (2017).
Feldman, Steven W. “Statutes and Rules of Law as Implied Contract Terms: The Divergent Approaches and a Proposed Solution.” U. Pa. J. Bus. L. 19 (2016): 809.
Horsfall v Thomas [1862] 1 H&C 90
Museprime Properties v Adhill Properties [1990] 36 EG 114
Pearson v Dublin Corp [1907] AC 351
Sachs, Stephen E. “Originalism as a Theory of Legal Change.” Harv. JL & Pub. Pol’y 38 (2015): 817.
Sale of Goods Act 1954 at section [19]
Smith v Land & house Property Corp [1884] 28 CH D7
Solle v Butcher [1950] 1 KB 671
Stone, Richard, and James Devenney. The modern law of contract. Routledge, 2017.
Willett, Chris. Fairness in consumer contracts: The case of unfair terms. Routledge, 2016.
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
