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Law |
Scenario country (Brazil) |
Home Country (Australia) |
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Legislative system Rule of Law |
The law of brazil is based on statutes and, partly and more recently, a mechanism called súmulas vinculantes. It derives mainly from the civil law system of European countries There are many codified statutes in force in Brazil. The current Federal Constitution, created on October 21, 1988, is the supreme law of the country The Constitution organizes the country as a Federative Republic formed by the indissoluble union of the states and municipalities and of the federal district. Under the principles established in the Federal Constitution, Brazil’s 26 federate states have powers to adopt their own Constitutions and laws. There is a constant progress towards establishing uniform laws and maintaining and changing legislative laws. |
Australian legal system reflects a parliamentary democratic system. Federal system can be observed in that country. It means the power is divided between one national government and six states. The states are self-governing states and the judges are depending on the precedents. The Constitution of Australia is the primary legal document and it is supreme law of the land which gives all the powers to the legislative documents. Every citizen and the government is entitled to a uniform law and the laws are made to make sure there is no bias and everyone is made to feel equal in the eyes of law (Curtin, 2016). |
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Court system |
The court system is multifaceted and the law followed is mostly civil in nature. The jurisdictions are divided into electoral, constitutional. |
There is a hierarchy of courts in Australia and the courts are divided into federal and state levels. The highest court in Australia is High Court. |
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Types of courts |
The Supreme Federal Court, Superior Court of Justice, Superior Labour Court, Superior Electoral Court |
Magistrates’ Court, Local Court, District and County Court, Supreme Court, Federal Courts, High Court. |
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Diagram of courts |
The Supreme Federal Court- Superior Court of Justice- Superior Labour Court-Superior Electoral Court ( picture 1 in appendices)* |
Magistrates’ Court-Local Court- District and County Court-Supreme Court-Federal Courts- High Court. ( picture 2 in appendices)* |
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2. Contract Law Elements of contract law |
The contract law in Brazil is influenced by the Brazilian Civil Code and it also takes into consideration Consumer’s Code. The contract should be legal and moral. |
The contract law has to be valid only if there is an agreement, offer and acceptance and a lawful consideration. Australian Law is influenced by common law and it ensures the relationship between the two parties who are willing to enter into a party. Contract law is formed by the legally enforceable agreements which are valid in the eye of law. In cases of any breach, the parties can claim damages (Mason, 2016). |
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How are contract laws made |
The agreement has to be legal and moral and the agreement should deal with possible standards which can be met by both the parties (Smits, 2017). |
The parties have to make a free bargain and they need to enter into a legally binding agreement. |
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Frustration of Law |
A contract is said to be frustrated when it cannot be legally enforceable. (Klee, 2018) |
When the contract cannot be enforced because of unenforceable conditions and the parties cannot enforce the contract. None of the parties are at fault in cases of frustration of contract. The functions of the contract is to meet the goals and objectives of the contract and in cases of frustration, the contract becomes terminated automatically and thereafter the parties are not obligated to honour the ends of the contract. In cases of frustrated contracts, it becomes void ab initio, that is, void since the inception. Delay is one of the reasons when a contract becomes frustrated. One of the problems of claiming frustration is the difficulty in establishing it and therefore it increases the chances of claiming damages. |
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Remedies of contract law |
Punitive damages mean they can punish the offending parties. |
Damages can be either liquidated or unliquidated where the sum is either decided or left for court to be decided. Liquidated damages are calculated on a weekly basis whereas unliquidated damages can be claimed in cases of breach (Hoeppner, Freud & Depoorter, 2017). Unliquidated damages can be claimed when the breach could not have been anticipated (Eldridge, 2016). |
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3. Agency Law Duties of agent |
The agent has to promote the business of principal. Brazilian Civil Code of 2002 manages the law of agency in Brazil. It is a contract entered into between the agent and the principal and the rules of federal apply. |
The agent is duty bound to work for the profit of the principal. He has to act as the intermediary promoting the business of the principal (Piva & Sasanelli, 2017) |
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Rights of agent |
In Brazil, the agent has rights to be compensated for the loss that is suffered in the transaction. The Brazilian Civil Code, 2002 talks about the rights and duties of the agent. The agent has the right to be indemnified in cases of loss. |
The agent is compensated by the principal for working under him. The agent has the right to be reimbursed by the principal for all the expenses that he bears on behalf of the principal. The agent shall also be indemnified against unlawful acts and the agent shall not be held liable for the acts of the principal. The agent shall only be treated as the representative of the principal. |
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Principles of agent |
The agent has to disclose all the information truthfully and act in the best interest of the principal (Lowenstein, 2017). The agent cannot defraud the principal. The agent has to remain truthful to the principal. |
The agent has to keep his interest ahead of the principal. The agent has to be careful and diligent in dealing with the terms of the agreement (DeMott, 2015). The agent has to avoid conflict of every nature and also has to keep the interest of the principal. |
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Obligations of an agent |
The agents are obligated to maintain a fiduciary relationship and they are based on trust. The principal is obligated to work as the facilitator and promoter of business transactions that takes place between the principal and the third party (Lipsky et al., 2018). |
Agents are bound by a code of conduct that mandates that the agents keep the interests of the principal and the agreement ahead of the interests that might accrue out of the transaction. The duties of the agent entail that he shall act on behalf of the principal and also represent him. The principal shall delegate powers to the agent and he shall have to act in regard to those. The principal has a natural power of authority over the agent and the agent is duty bound to act in good faith. The agent has to avoid conflict and act in the best interest of the principal. |
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4. Employment Law Statutes |
Civil law countries lay emphasis on the rights and duties of the employees and there are specific agreements dealing with the rights of the people who are working in a corporate environment (Rice, 2017). The civil codes of employment are not binding and the employment act is important for giving a status of employment to the parties. |
The Australian Employment Act is dependent on the statutes that clearly give the status and position of an employer (Dau-schmidt, 2016). The Fair Work Act, 2009 talks about the relationship between employer and employee and it is the law governing their rights under the Australian law. It talks about the entitlements and the working hours that the employee has to be subject to. The statutes clearly talk about the wages and remuneration and how the laws are implemented in terms of the employment schemes. Employment has to be understood as a method of finding the right position, the employment skills and then dealing with the restrictions that apply on the employers and employees. The National Employee standards ensure the minimum entitlements that are owed to an employee and the employer is duty bound to take care of the requirements of the employee. This Act provides for a framework that discusses the rights and requirements of the employees. |
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5. Intellectual Property How will develop |
Intellectual Property is the newest kind of law that needs protection and recognition from the government (Dutfield, 2017). The intellectual property has different branches that deal with trademark, copyright, patent and geographical indication. Intellectual Property has developed with the help of recognition and protection of the rights that are the outcome of creativity and use of inventions. |
Intellectual property rights are related to intangible assets which include in their ambit trademark, designs, patents. The entire purpose of intellectual property is to develop international agreements between the parties that are essential for the prevention of infringement (Janis et al, 2016). The Intellectual Property Laws in Australia are for the purpose of administering laws that help in the regulation of intellectual trade. |
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How will protect |
The intellectual property laws in Brazil are meant for the protection of intellectual property rights that do not promote any infringement. The entire purpose of protection of intellectual property rights is to ensure that there is no third party interference and that there is no infringement by any third party without proper permissions. |
The laws in Australia for the protection of intellectual property is essential as it protects the rights of the holders of intellectual property. In cases when there is no right over the property, the laws makes it mandatory that the holder of the property gets the registration so as to prevent infringement and interference by third party. The Trade mark Act, Design Act, Plant Breeder’s Rights Act and Regulations, Copyright Act and Patent Acts are the primary laws that deal with intellectual property rights in Australia. |
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Remedies in case of intellectual property |
Under the Brazilian law, It is essential that the trademark be protected. In cases when there is a breach of trademark protection, it becomes important to ensure that the right holder whose rights have been infringed finds ways to be compensated (Bentyl & Sherman, 2014). It is the duty of the legislature to ensure that the rights of the holder are protected. Both monetary and non-monetary methods of compensation are applied to ensure that the rights of the holder are preserved. Both civil and criminal damages can be claimed and in such cases, the compensation becomes necessary. |
Under Australian law, the owner of the intellectual property shall have their rights protected and there are many remedies available to an owner in case there is an infringement of the rights(Drahos, 2016). The damages are devised by the government to ensure that there are legal remedies that help in the protection of the legal rights of the holder. The damages are in the position to compensate the losses that have been suffered by the holder. The nature of the damages are monetary and they are also civil in nature. The intellectual property rights grants negative rights and therefore it ensures that there is no infringement of those rights by third parties. There shall be no unlawful use of the protected marks and no one should gain unfair advantage of those marks. Intellectual property rights protect the artistic and literary works of an author and promotes innovation. |
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7. Law of torts |
The concept of tort law in Brazil is very highly developed that talks about the liabilities that are imposed on the defaulting party. Torts and economics are very thoroughly discussed under Brazilian law and tort has always had a very strong impact on the economics of Brazil. In Brazil, there is a dualistic system of liability which is very strong in understanding the crime and does not go slow in addressing the needs of the people whose rights have been infringed. Tort law in Brazil started with the help of the statutes that claimed that clear cut tests be applied to understand liability and punish the defaulting party (Kraakman & Hansmann, 2017). The Brazilian system has focused more on the hybrid conditions of the UK law and the German law which tries to harmonize any conflict that arises between the judiciary and the world that follows the concept of tort law (Dyson, 2017). Negligence and compensation are always going hand in and therefore it is essential to link liability and causation. The theory of tort arises from the concept of damages and it is important to assign fairness and equity in any legislation. Brazilian tort law protects the victims and penalizes the wrongdoers. |
The tort law in Australia is a mix of common law and legislation and tort law applies in cases where there is a civil wrong. Tort is a private wrong that is done on a private person with the help of the wrongdoings of another wrong person. Tort helps in the correction of wrongs and they derive their inception of the legislation that believes in the correction of human conduct. The tort law in Australia is very strong and the limits of tort law cannot be defined with the help of the statutes. Under Australian law there are no specific laws and the tort laws have evolved through common law statutes (Stickley. 2016). The colonial heritage of Australia owes its recognition to tort law and United Kingdom has played a strong role in understanding and comprehending the rights of the victims. The tort law in Australia has been a success and it is a strong case of the wrongdoers getting penalized by the law by inflicting harm on another private person. |
References:
Bently, L., & Sherman, B. (2014). Intellectual property law. Oxford University Press, USA.
Curtin, J. (2016). Australia. European Journal of Political Research Political Data Yearbook, 55(1), 14-21.
Dau-Schmidt, K. G., Finkin, M., & Covington, R. (2016). Legal protection for the individual employee. West Academic.
DeMott, D. A. (2015). Agency in the Alternatives: Common-Law Perspectives on Binding the Firm. Research Handbook on Partnerships, LLCs and Alternative Forms of Business Organizations, 81.
Drahos, P. (2016). A philosophy of intellectual property. Routledge.
Dutfield, G. (2017). Intellectual property rights and the life science industries: a twentieth century history. Routledge.
Dyson, M. (2017). What Does Risk-Reasoning Do in Tort Law?.
Eldridge, J. (2016). The law relating to penalties.
Hoeppner, S., Freund, L., & Depoorter, B. (2017). The Moral-Hazard Effect of Liquidated Damages: An Experiment on Contract Remedies. Journal of Institutional and Theoretical Economics JITE, 173(1), 84-105.
Janis, M. D., Hovenkamp, H., Lemley, M. A., Leslie, C., & Carrier, M. A. (2016). IP and antitrust: an analysis of antitrust principles applied to intellectual property law. Wolters Kluwer Law & Business.
Klee, L., 2018. International construction contract law. John Wiley & Sons.
Kraakman, R., & Hansmann, H. (2017). The end of history for corporate law. In Corporate Governance (pp. 49-78). Gower.
Lipsky, T., Wright, J. D., Ginsburg, D. H., & Yun, J. M. (2018). Federative Republic of Brazil, Before the Administrative Council for Economic Defense (“CADE”), Draft Guidelines Concerning Antitrust Remedies, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University.
Loewenstein, M. (2017). Agency Law and the New Economy.
Mason, K. (2016). Mason and Carter’s restitution law in Australia. LexisNexis Butterworths.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).
Piva, A., & Sasanelli, N. (2017). Societal and Economic Benefits of a Dedicated National Space Agency for Australia. Defense SA.
Rice, L. J. (2017). Employment Law Pitfalls for Solo and Small Firm Practitioners. Md. BJ, 50, 18.
Smits, J. M. (Ed.). (2017). Contract law: a comparative introduction. Edward Elgar Publishing.
Stickley, A. P. (2016). Australian torts law. LexisNexis Butterworths.
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