Summary of Tribe Constitution and Comparison to Australian Legal System
There are several problems which have been identified to resolve the problems between the members of the society. In order to resolve the dispute, a new constitution has been projected for the society. The procedure of decision making in the field of law has become the chief rule that the latest constitution has brought to enhance it.
The decisions which have been previously proposed was said to be inconsistent and it has been identified in the current situation. The Constitution that has been proposed recently states that the decisions must be reliable in relation to the details of the cases must be identical with one another. It has been identified that the seniors what partial in relation with their own members of the family. There should not be any kind of partiality or discrimination that has been stated in the new constitution which has introduced new procedures.
The basic rules are the primary rules must be addressed by the secondary rules that have been given by the latest Constitution that has been proposed. This new constitution has provided some provisions for the executive and there work is to enforce those rules that have been proposed by the seniors so that members of the society not disregard the rules. The Constitution that has been proposed recently contains some provisions for altering the rules as per the requirement of the society. A process of the amendment can be done to alter the rules in consideration for the need of the community. This kind of amendments must comply with the rules of the constitution. This Constitution that has been recently proposed provides a group of individuals who make judgments known as judges who decide whether a member of the society is expressive in saying the truth. The three-part legal system or the three-tier legal system that has
been projected by a professor named Hart, states the provision which is in relation to the rule of recognition. This proposal states that if there is any problem with their primary rules then it can be improved by the secondary rules. The rules that have been set to change the provisions in the recent Constitution that have been proposed. There are some powers of the administration that have been passed over the executive to impose that decision that has been taken by the decision creators in the tribe. This administration also creates their own judgments that are needed while working out with their authorities. In a similar way, it has been seen that there is a close link between the rule of recognition and the rules of change in the recent constitution and this thing has been pointed out by the professor named Hart.
Researching a Foreign Legal System in Terms of Hart’s 3-Part Legal System
In the new constitution that has been planned by the members of the society, there are some requirements of the rules of adjudication that have been introduced. This can only come into force if the judges who make the decision has the power to make sure that nobody in the society should take the rules with them and they must also know that decisions must be based on proof or evidence. In a similar way, the legal system of Australia has proposed the same thing in their constitution for the members of the society who include themselves within the society as it has been proposed in the three paths legal system of the professor Hart. The existence of common law is very much important in the constitution so that it can repair the problems that have been recognized to the statutory laws. By the process of the doctrine of precedent, Australia has the provision off constantly changing their procedure of making of the decision. In a country like Australia, every single citizen has been treated equally in the eyes of law. Certain laws must be
prepared by complying them with section 51 of the Australian constitution. If these laws do not comply their non-validity will be taken into consideration
Answer 2
Issue
The issue that has been presented over here is that Barry and Angelo had signed a contract but there was a misrepresentation of certain terms in the contact.
Rule
The basic argument that has to be done to solve out this issue is that there must be free consent that is an essential requirement of the contract and especially of misrepresentation. The term misrepresentation has been defined as a false statement that has been made by an individual in a contract or an agreement with the other individual. These cannot be considered as the terms of the contract. It encourages the other party to make another contract. This statement has been made in the case named Money v Westpac Banking Corporation (1988) ATPR (Digest) 46-038.
Further, in another case Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31, it has been stated that the statement or terms in the contract that forms misrepresentation must be false in order to take actions against them and those facts must not be a normal state. It is said that if a person is preparing to form a false statement that is in respect with the upcoming situation then this kind of
misrepresentation will not be taken into consideration and there won’t be any actions taken for such misrepresentation unless and until these terms are formed in a contract.
Analyzing a Contract Dispute Between Buyer and Seller of a Fruit Store
Adding to it, in the case named Esso Petroleum v Mardon [1976] QB 801, it has been stated that if there is any law that comes into existence then no actions can be taken against the term. In another case it was explained that if the term or the statement is true but because of the condition it got changed or false then it is the liability of that person to give them the information about the changed term or statement otherwise it will be deliberated as misrepresentation.
According to the case, Lambert v Co-Operative Insurance [1975] 2 Lloyd’s Rep 485 the statement was made that the capacity of misrepresentation should be as such that it encourages a person to pursue a contract. The term misrepresentation can only be claimed if the party has agreed upon to get in a contract. As per the case Car & Universal Finance v Caldwell [1965] 1 QB 525 it has also been stated that if the party does not carry any information about the term misrepresentation then the statements in the contract cannot be taken as misrepresentation.
In the field of law, there are three kinds of misrepresentation that have been acknowledged and it can be categorized as indemnity, damages, and fraudulent misrepresentation. A statement has been made by the court in the case named Howard Marine v Ogden [1978] QB 574 that misrepresentation cannot be claimed if the person has enquired and made the judgment on his own. However, this regulation cannot be applied in fraudulent misrepresentation.
The term fraudulent misrepresentation can be defined as when a party involves the false statement intended to make the other person getting engaged in the contract as stated in the case Edgington v Fitzmaurice (1885) 29 Ch D 459. Therefore, it is the duty of the court to allow the parties to give the back the damages that have been caused to them.
Application
The elements to make a contract valid like offer consideration and acceptance is present in the contract that has been stated in the contract of Barry and Angelo for the purchase of a vegetable shop. Angelo made an advertisement and stated that there were no competitors of this business and the turnover is $20,000 per month. After seeing this advertisement Barry was interested to buy this shop. However, after the contract was formed between Angelo and Barry it was seen that there was some false statement that was made in the advertisement and in the contract. The false statements were that there was no competition around this business and the turnover was $20,000 per month. After some days it came to the knowledge of Barry that there was competition in the same village and the turnover came around to $13,000 per month. With respect to the test of a material statement, it has been stated that this advertisement can make any person get in the contract.
Advise on Challenging Validity of Contract Based on Statements Made
Thus, by applying this test in the case Derry v Peek (1889), it has been explained that Barry was made to get in the contract. In addition, it was also said that Barry depended on the advertisement this was made by Angelo to get in the contract to buy the shop. According to the case of Museprime Properties v Redhill Properties [1990]. The second test of misrepresentation has been stated. It is rational to mention that Angelo should know that the competitor is present and about the turnover which he had stated in the advertisement. Angelo knew that he is making a false statement of the fact that has been mentioned in the contract. The conduct of Angelo has made a fraudulent misrepresentation that is provided in the provision stated in the case of Smith v Land & House Property Corp (1884). As per the given situation there are some rights that have been provided to Barry to come out of the contract that has been made with Angelo. After this, the contract will be considered as void contract according to Barry. Another right has been provided to Barry that he can claim for damages that have been made by Angelo as a part of the remedy for fraudulent misrepresentation as provided in the case of Leaf v International Galleries [1950].
Conclusion
To conclude the above-mentioned facts, it can be said that there was a fraudulent misrepresentation of the facts that were mentioned in the advertisement that was made by Angelo.
Answer 3
Issue
There are certain rules in SOGA, 1954 that are administered by Consumer Act 2010 and Australian Competition in Australia. The laws that are stated in the consumer laws can be applied to those who purchase any domestic product and to that amounts to $40,000. If a person who purchases the goods within the boundaries of Australia, the SOGA can be applied to them. But anything that is purchased not within the boundaries of Australia the consumer laws is not applicable to them. According to the section 19 of the SOGA, it has been stated that the sellers are enforced by the implied obligation so that they can give the products that have the reasonable quality to the purchaser even after there was no agreement for the goods’ quality.
Further, it is stated that provisions of the common law legislation, implied terms have also been added to the contract to assure that operation of the contract is done properly. There are certain terms that are been discussed and added to the contract. But there are certain terms that have not been discussed but also be a part of the contract and they are said to be the as fraudulent misrepresentation. These terms that are not discussed are added because it makes the contract work properly. Certain ways are there to include the implied terms of the contract. According to the case Commonwealth Bank of Australia v Barker [2013] FCAFC 83, a statement has been given that to make the business more productive and efficient, implied terms are induced in a contract. It has been said that if the implied term is not induced in the contract then it can be difficult to carry out the contract by the parties to a different level. If the contract has some customs in the industry then it will be easy to for the contract to have employed terms.
Advise on Possibility of Breach of Contract Action
There are various remedies that have been given by the legislation of the common law to those parties when the contract has been breached. There are certain remedies that are made available to the party if the contract is breached and they are an injunction, specific performance, damages, and recession. According to the case Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 it has been said that it is the duty of the defendant to repair all the damages that have occurred because of him as he has breached the contract.
Application
There was a contract that was formed in a written way and both the parties have duly signed it. There was no lawyer present that time as it was thought by Barry that he did not want any extra costs. There were several terms that were incorporated in the contract like a loader and the van will be given to Barry on buying that shop. After he bought that shop, it came into the note of Barry that there was no delivery of the van and the loader was not at all working. The van was on the lease and if Barry wants to use that van, he needs to pay $500 to the person who is the owner of the van. In addition, it has been stated by Angelo that the monthly cost to manage the business will amount to $8000 but the expenses got increased because of the use of van with sums the amount to $8500. It is said that when the goods are brought then it is implied that the goods will be in a proper condition and must be appropriate for the purpose as stated in Doyle v Olby (Ironmongers) Ltd [1969]. This implied term is later on maintained by section 19 of the SOGA 1954 and it states that it is contract’s implied term that the loader was given to Barry will be fit for the use. But the loader came out to be damaged. In fact, Barry can claim for expenses from Angelo that was incurred for him to fix the loader.
Conclusion
Barry has the right to claim for the damages with respect to the loader that came out to be broken and the expenses of the leased van that has occurred to him.
Part C
Script
- Hello Mr Barry. My name is and I am here to advice you about the contract that you have signed with Angelo.
- I got to know that you had seen an advertisement and it stated that there were no competitors of this business and the turnover is $20,000 per month.
- After seeing this advertisement you got interested to buy this shop.
- It came to my notice that you did not hire any lawyer so that there is no additional cost that can be gained by you.
- It has been stated that the elements to make a contract valid like offer, consideration and acceptance that has been stated in the contract between you and Angelo for the purchase of a vegetable shop.
- It also came to my notice that it is rational to mention that Angelo should know that the competitor is present and about the turnover which he had stated in the advertisement.
- I also got to know that there was a false misrepresentation that was made by Angelo.
- The meaning of false misrepresentation is that the terms that are considered to be wrong or false are presented in the contract.
- You must know that if there is any law that comes into existence then no actions can be taken against the term.
- I want to notify you that Angelo knew about the misrepresentation that he has presented in the contract.
- In addition it can be found by the court that you depended on Angelo on the representation that has been made by the advertisement so that you can get in the contract with Angelo to buy that shop.
- You must know that you can sue Angelo if you do not want to get out of the contract.
- However, it has been stated by Angelo that the monthly cost to manage the business will amount to $8000.
- The expenses got increased because of the use of van with sums the amount to $8500.
- You must know that there are some rights that have been provided to you to come out of the contract that has been made with Angelo.
- You must consider the contract as the void contract. Void contract means a contract that carries illegal acts.
- Another fact that you must know that you can claim for damages that have been made by Angelo as a part of the remedy for fraudulent misrepresentation.
- The term fraudulent misrepresentation can be defined as when a party involves the false statement intended to make the other person getting engaged in the contract.
- It was known to me that there was no delivery of the van and the loader was not at all working.
- I also got to know that the van was on the lease and if you want to use that van, you need to pay $500 to the person who is the owner of the van.
- You must know that you can claim for expenses from Angelo that was incurred for him to fix the loader.
- You must also know that you can claim for the damages that have been caused to you by breaching the contract.
- It must be known by you that there are certain terms that are been discussed and added to the contract.
- But there are certain terms that have not been discussed but also be a part of the contract and they are said to be the as fraudulent misrepresentation.
- There are various remedies that have been given by the legislation of the common law to those parties when the contract has been breached.
- There are certain remedies that are made available to the party if the contract is breached and they are an injunction, specific performance, damages, and recession.
- It has been said that if the implied term is not induced in the contract then it can be difficult to carry out the contract by the parties to a different level.
Reference list.
Bix, Brian. “On the dividing line between natural law theory and legal positivism.” Law and Morality. Routledge, 2017. 49-60.
Bridge, Michael G. The International Sale of Goods. Oxford University Press, 2017.
Coyle, Sean. From positivism to idealism: a study of the moral dimensions of legality. Routledge, 2017.
Gillespie, John. Transplanting Commercial Law Reform: developing a’rule of law’in Vietnam. Routledge, 2017.
Green, Michael S. “A Puzzle about Hart’s Theory of Internal Legal Statements.” Pragmatics and Law. Springer, Cham, 2017. 195-221.
Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business, 2016.
Mar, MaksymilianDel. Legal Theory and the Legal Academy. Vol. 3. Routledge, 2017.
McKendrick, Ewan, and Qiao Liu. Contract Law: Australian Edition. Palgrave Macmillan, 2015.
Pearson, Gail. “Further challenges for Australian consumer law.” Consumer Law and Socioeconomic Development. Springer, Cham, 2017. 287-305.
Tonry, Michael. “Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment.” (2017).
Lambert v Co-Operative Insurance [1975] 2 Lloyd’s Rep 485
Car & Universal Finance v Caldwell [1965] 1 QB 525
Howard Marine v Ogden [1978] QB 574
Edgington v Fitzmaurice (1885) 29 Ch D 459
Pearson, Gail. “Further challenges for Australian consumer law.” Consumer Law and Socioeconomic Development. Springer, Cham, 2017. 287-305.
Tonry, Michael. “Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment.” (2017).
Derry v Peek (1889)
Smith v Land & House Property Corp (1884)
Leaf v International Galleries [1950]
Bridge, Michael G. The International Sale of Goods. Oxford University Press, 2017.
Commonwealth Bank of Australia v Barker [2013] FCAFC 83
Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158
Mar, MaksymilianDel. Legal Theory and the Legal Academy. Vol. 3. Routledge, 2017.
Coyle, Sean. From positivism to idealism: a study of the moral dimensions of legality. Routledge, 2017
Doyle v Olby (Ironmongers) Ltd [1969].
Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business, 2016.
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