Partnership Liability and Verbal Agreement
Discuss about the Ethics and Conduct of Business Law.
The main issue of this case is to determine whether the verbal agreement signed by Mick can be enforceable against Keith or not.
The subject matter of the case is based on the general liability of the partnership. A partnership is an agreement where two or more persons want to carry on a business and share their profit, assets and other liabilities regarding the business. A flexible business structure is necessary in case of partnership and it allows any of the partners to deal the business in lieu of other partners. According to the general rule of partnership, all the partners should agree to all the liabilities that will be occurred during their partnership (Barron 2012). It is a common principle of partnership that all the partners will be liable for the act of any one of the partners. According to section 5 of the Partnership Act 1958, every partner is the agent of the firm and the other partners and he can carry on the business in lieu of others. Therefore, all the partners will be liable for the acts of other partners. According to section 9 of the Act, every partner is acting as both an agent and a principal. According to section 16, in case of any negligent act of any partner, all the other partners have to carry out the liability. Certain provisions of the law of agency will also apply in this case.
In this present case, it has been observed that a contract has been made in between the performer and Jagger Scaffolding and Partners regarding the concoction of the stage. Mick had signed on the contract on behalf of the partnership firm where Keith is another partner. It has been contracted with Mick that all the stage work will be done in a systematic way and certain terms of the contract have been made in between Mick and the performer. However, at the date of the program, it has been found by the performer that none of the additional terms that have been agreed by the parties verbally maintained properly. Therefore, Mick has made a breach. In the contract, he has signed on behalf of the partnership. According to the general rule, Keith will be held liable, as he is one of the partners and Mick has acted as an agent on behalf of other partner.
Validity of Verbal Agreement and Promissory Estoppels
The main subject matter of the case is based on the validity of the verbal agreement. According to the general rule of contract law, any contract whether written or oral is valid in nature. It has been established in Van Den Esschert v Chappell, that in case of verbal agreement, the intention of the parties are important and in case both the parties agreed to certain terms and conditions, it will bind on the parties and in that case, it is not required that the terms should be mentioned in the written contracts. Further, in De Lasalle v Guildford, it has been observed by the court that an oral contract is valid and the party accept the offers should have to act according to those terms and in case of any breach, the affected party can claim compensation and repudiate the contract. According to the common provision of the contract law, in case all the essential elements of contract such as offer, acceptance to the offer, consideration and intention of the parties has been maintained by the parties, the contract will be enforceable in nature and all the parties will be bound by the terms. In Wakeling v Ripley, court has decided that when one party has made any promise and the other party is relied on the terms of the promise so badly that non-compliance of the promise will incur huge loss to the party, the promise maker is obliged under the law to maintain all the promises. This is called promissory estoppels.
In this case, it has been observed that certain verbal agreement have been made regarding the decoration of the stage and Mick has assured the performer that he will arrange all the necessary things for the performer at the date of performance. The performer has demanded certain decoration plan to Mick regarding the technical tower, spot light ramp and certification of the partnership firm. However, all these terms have been assured verbally and none of the terms have been mentioned in the contract. According to the provision of Van Den Esschert v Chappell, it can be stated that the partnership firm is bound by all these verbal agreements. Further, the firm is required to arrange all these materials under the rules of promissory estoppels.
The present case is based on one of the essential elements of contract that is capacity of the parties. According to the general principle, the parties to the contract should be mentally capable to enter into the contract and they should have enough soundness to enter into a contract. When a party accepts an offer, it is required to be determined whether the party is in the condition to understand the value of the contract or not (Carter 2013). The mental capacity of the person becomes unstable at the time of intoxication and in that case, anything done by the person ought not to be counted. The concept if meeting of minds is not possible when a person is intoxicated and they are not in a position to understand what they are doing or agreeing. In Blomley v Ryan (1956) 99 CLR 362, court has held that mere drunkenness could not be a defence. The parties have to show that the drinks seriously affected them and in that case, they will not be responsible for any contractual terms and condition.
Intoxication and Capacity to Enter into a Contract
In this case, both the performers were boozed after consuming so much alcohol at the party and it has been observed their steps were swaying. They could not talk with the guests in a proper way, as they were intoxicated. In that stage, it is not possible for them to understand the effectiveness of any statements or validity of any contract. However, another person named Ronnie was with them and did not consume any alcohol. While roaming with the performers, he had proposed to make certain contracts regarding another performance and offered certain monies to them. Due to heavy consumption of alcohol, the performers had accepted the offer and based on their statement, Ronnie had booked a show on 20th June. According to the common rule, no valid contract has been made between the parties as the contract has been made during intoxication.
The subject matter of the case is based on restraint clause of an employment contract. The main aim of this provision is to protect the proprietary interest of the employers. According to this rule, a proprietary interest denotes the confidentiality of the employment and the client connection (Ciro, Goldwasser and Verma 2014). According to section 23 of the Bill of Rights, practice of any trade is a constitutional right of an individual and can only be restrained after verifying the reasonableness. According to the provisions of contract law, if the parties owe a legitimate interest regarding the restraint of trade to protect the interest, he can do the same. In case of employment contract, restraint provisions are justified (Gibson and Frase 2016). A valid restraint clause should follow certain elements such as:
- There should be certain valid interest that are required to be protected;
- The nature of the interests should be reasonable;
- No contrary provision should be included in the restraint clause with public interest.
According to Greig v Insole [1978] 3 All ER 449, the employers should have a valid interest and the nature of the interest should be legal. Any personal interest could not be labeled as valid interest. If an employee is restrained to profess any business of similar kind after the termination of his employment, it will be amount as void and unenforceable. Further, it is required to determine the interest of the employer that must be reasonable. Further, according to Northern Tablelands Insurance Brokers Pty Limited v Howell [2009] NSW SC 426, certain matters are required to be proved in case of post employment restraint. The employer has to prove that the employee has an access to the confidential information of the company and any leakage of the information can be proved detrimental for the employer. Further, the client connection of the employer could be hampered by the acts of the employee.
Restraint Clause in Employment Contract
In this case, it has been observed that certain restraint provisions were there in the employment contract of Graham, where he was restrained to join any similar job within five years after his termination from the present job. However, it has been observed that he had joined another band after his termination, which is a rival group of his previous band. Therefore, there is a possibility that the proprietary interest of his previous employer could be hampered, as the confidentiality of his business and the client connection could be hampered.
The subject matter of the case is based on the provision of Copyright Act 1968 (Cth). According to general provision of the Act, copy right is a legal right where the creativity of an artist could be secured and it disable other to imitate the creativity. According to section 31 of the Act, the artist has exclusive rights of copyright. Further, it has been mentioned in section 32 of the Act, the author should be the qualified person to derive the copyright from original artistic or musical work. The term “qualified person” denotes that the person should be Australian citizen. There are certain moral rights provisions that have been included under the Australian Copyright Legislation in 2000. If an individual has attempted to reproduce or distribute any copyrighted facts to the public, he will be charged for breach of copyright. According to section 33 of the Act, any other individual could get the copyright on the artistic or musical work of other only after fifty years of the death of the artist.
In this case, it has been observed that certain musical performances have been performed and Joe had created the video and uploaded the same in you tube. Further, Don had uploaded the same video after certain modification in it. However, no one had informed the original singer of the video and it has been observed that any of them has obtained any copy right regarding the video. According to the general rules of the Copyright Act, the actual copyright holder for the original work is the singer and no one has any rights over the performance. Therefore, it can be stated that neither Joe nor Don has any authority to claim them as the owner of the singing video. Further, they should not upload the video without notifying the original singer of the performance.
Conclusion:
Original singer owns the copyright of the original video and Joe and Don had infringed the copyright.
Reference:
Barron, ML 2012, Fundamentals of Business Law, 7th edn, McGraw-Hil Australia, North Ryde, N.S.W (pp. 261-268)
Blomley v Ryan (1956) 99 CLR 362 (pp. 393-408)
Boatright, JR 2012, Ethics and the conduct of business, 7th edn, Pearson, Upper Saddle River, N.J (505), 1
Carter, JW 2013, Contract law in Australia, 6th edn, LexisNexis Butterworths, Chatswood, N.S.W. (pp. 104-107)
Ciro, T, Goldwasser, V & Verma, R 2014, Law and business, 4th edn, Oxford University Press, South Melbourne, Vic (Note: this book is available online via the UNISA library) (pp. 100-110)
De Lasalle v Guildford [1901] 2 KB 215
Gibson, A and Fraser, D 2016, Business Law, 9th edn, Pearson Education Australia, Sydney
Greig v Insole [1978] 3 All ER 449
Hage, J, Akkermans, B & Springerlink, 2014, Introduction to Law, Springer International Publishing : Imprint: Springer, Cham. (Note: this book is available online via the UNISA library) (pp. 261-268)
Latimer, P. 2016, Australian Business Law, CCH. 51(4), 499-508
Northern Tablelands Insurance Brokers Pty Limited v Howell [2009] NSW SC 426
Van Den Esschert v Chappell [1960] WAR114
Wakeling v Ripley (1951) 51 SR (NSW) 183
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
