Contract Law in Mexico
Explain Law System in MEXICO.
The legal system of Mexico and Australia comprises of various laws governing the execution of business and trade in both the countries. The Mexican contract Act includes the Federal Antitrust Law, the Foreign Investment Law, North American Free Trade Agreement (NAFTA) and other relevant treaties and the General Corporation Law while in Australia; the contracts are governed by the Australian Contract Act. In Mexico, the Intellectual Property Law and the Federal Copyright Law cover the intellectual property laws. Many of the foreign companies conducting their business in the country are governed by NAFTA’s Intellectual Property Law whereas in Australia it is governed by Patent Attorney Act, the Copyright Act etc. (Greene & Heilbrun, 2013).
As per the civil law of Mexico, there are thirty-five sections pertaining to Tort in the Civil Code of jurisdiction whereas, in Australia, it is governed by the Tort Law in Australia. The agency and employment act consists of Mexican Federal Labor Law (MFLL) while in Australia it is governed through the Workplace Relations Act 1996. So, in this report, the above-mentioned Laws will be analyzed and assessed in the context of business transactions in Mexico and compared with the Australian Legal system.
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Contract Law in Mexico |
Australian Contract Act |
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The commercial entity and individuals can enter into any type of contract which is legal and serves the corporate purpose of the company. |
The Contract act of Australia is based on the common law and it has permitted the legal enforcement of all types of contracts. All the contracts should be valid unless it is demonstrated otherwise (Edelman, Goudkamp & Degeling, 2015). |
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The essential requirements for a legally enforceable contract are consent and logical subject matter of the contract. The consent can be expressed or implied. The purpose of the agreement must be lawful, possible and marketable (Schwenzer, Hachem & Kee, 2012). |
The six important elements of a legally enforceable contract are capability, agreement, consideration, purposeful, written instrument and reliability. |
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A material breach of contracts is restricted up to the parties to the agreement and they are governed the Contract Act of Australia. Under article 2106, the liability emerging from the willful misconduct is enforced and it cannot be waived by both the parties (Fried, 2015). |
The breach of the contract would allow the other party to dismiss the contract if it is a repudiatory breach i.e. the parties have the right to terminate the contract. Secondly, upon breach of the contract, if the parties have specifically provided then innocent party is legally allowed to dismiss the contract (Whincop, Keyes & Posner, 2018). |
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The remedies available for the non-breaching parties are that the other party must compensate the damages caused. The damaged party can claim the performance of the agreement or the contractual penalty but it cannot opt for both the remedies at the same time ( Filosa, 2013). |
The damages and liquidated claims are the common remedies available for the breach of contracts. The compensation acts as a substitute for the performance of the contract. In the equitable remedies , the specific performance of the contract is executed while considering the true intention of the parties. |
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New Mexico’s Tort Claim Act 1978 |
Tort law in Australia |
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Under the New Mexico’s Tort Claim Act 1978, the occurrences of the tortious act are determined and a causality relationship between the injury and act is established. Then the damages and losses are determined and then it awards the economic indemnification. |
Both common law and legislation are components of Tort Law in Australia. Tort is regarded as civil wrong and one individual may sue another for rectifying the wrong or form of conduct (Barker et al., 2012). |
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The statute of limitation for a tort which is derived from the product liability claim is two years. As per the Limitation Act 1985 in Australia this is associated with defects, the a period of filing for the said action would be 30 calendar days . A complaint before a Federal Consumer Protection Agency should be filed within 1 year from the product purchase. Lastly, the class actions associated with product liability have a limitation period of 3 years and 6 months. |
There are various time limits prescribed for various torts. The time limit for filing a suit for negligence is three years from the emergence of the cause of action by the claimants or within 12 years from the acts resulting in injury. |
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As per the New Mexico’s Tort Claims Act NMSA 1978 , the tort claims can be filed if the injury results from a car accident or when it is related to the dangerous or defective property. It can also be filed in the cases of medical malpractice of the government employees working in hospitals or healthcare institution, negligent operations of public utility services or injuries arising due to careless operations at the airport (Solove & Schwartz, 2011). |
The various classes of claims under the Australian law are occupation, trespasses or possession of the land, breach of duties, misrepresentation associated with public statutes, interference with employment and family relations, negligence and deliberate damage to fiscal interests (Australian Law Reform Commission, n.d.). |
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Intellectual Property laws of Mexico |
Australian Intellectual Property laws |
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Intellectual Property Rights are covered by the Industrial Property Law and the Federal Copyright Law 1996. The Industrial Property Law safeguards the industrial designs and exclusively grants the right to utilize or exploit the design to the owner of the registered design. The National Institute of Copyright manages the registrations of copyrights and arbitrates various types of disputes of copyrights. The Mexican Institute of Industrial Property governs the patent and trademark registrations and administers the enforcement cases of infringement of IPR. The industrial design is registered if it contains a variety of features which are not available in any of the related arts or are not recognized in common and most available commercial products. The procedure for filing the application is initiated with a formal verification regarding the compliance with the legal and administrative requirements. Once it is registered, the owner has the legal right to bring the proceedings against the third party which has copied, imitated or sold its designs in a fraudulent manner (Stevens et al.,2012). |
The intellectual property laws in Australia are related to trademarks, patents, designs and secret processes. Safeguarding the patent grants the right to forbid the third parties to deal trade and utilize any invention in Australia (Bently & Sherman, 2014). Design Act 2003 governs the design in Australia. Design can be defined as the overall depiction of the product resulting from its one or more visual features. In Australia, copyrights are administered by Copyright Act 1968. The copyright protects the artistic works, computer programs, compilations and textual materials. Safeguarding the trademark provides the right to utilize, permit their use or sell the trademarks. Trademarks are administered by Trademark Act 1995. Different classes of IP processes are registered in various ways. For example, in order to register the patent, one has to file either a standard innovation or international patent application (PCT). It is subsequently verified under Global Patent Prosecution Highway (GPPH) or under IP Australia- European Patent Office Patent Prosecution Highway (IP Australia- EPOPPH). |
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Copyright is registered under Copyrights Act 1996 which bestows the ownership of the patrimonial rights to the employer in case a labor agreement is entered between the employer and employee provided that a provision stating expressly that the rights belong to the former. |
No formal registration of Copyright is required in Australia. The artistic work is automatically registered after its creation . |
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Mexican Federal Labor Law(MFLL) |
Fair Work Act 2009 (Australia) |
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The main sources of employment law are international treaties approved by the Mexican Senate, constitutional rights, general regulations of law and fairness and precedents of the Supreme Court of Justice (Ronconi, 2012). The disputes either collective or individualistic in nature emerging from the labor relationships can be resolved before the Labor Courts which exist at the local and federal levels. The labor claims are also resolved by Local and Federal conciliations and Arbitration Boards. These are formulated by representatives of government, employer and employees. |
In Australia, the Fair Work Act 2009 has provided an agenda for workplace relations who are intended for promoting the welfare and economic prosperity of the citizens of Australia. According to the Fair Work Act 2009 the Australian Industrial Relations Council (AIRC) has been formed to provide provisions for the settlement of industrial disputes (Freyens & Oslington, 2013). It has also allowed for the negotiation and execution of collective and individual employment agreement. |
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As per the Mexican Federal Labor Law(MFLL), the maximum working hours per week as day shift should be 48 hours and a day off should be provided per week. |
38 hours are the standard working hours in Australia. Moreover, there is a provision regarding the flexibility of working hours for the employees so that they can work flexibly according to their convenience. As per the National Employment Standards, the minimum entitlements have to be provided to the employees. The ten minimal entitlements are annual leave, parental care , requests for flexible working hours, long service leaves , public holidays ,maximum weekly hours, public holidays , fair work information statement and notice of termination and redundancy pay. |
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The minimum wages are MXN$80.04. as per MFLL. As per MFLL, any kind of discrimination is prohibited in Mexico. All the employees are safeguarded on the grounds of race. Sexual preference and nationality etc. |
As per AIRC, the minimum wages are administered by Section 88A (b) of the Fair Work Act 2009. The act ensures the safety net for protecting the minimum wages and clauses of employment. The Federal and State Administration restrict the discernment so that equal job opportunities can be provided on the basis of pregnancy. Other acts are the Sex Discrimination Act 1984 and Equal Opportunities Act 1984 etc. |
Conclusion
This report can be concluded by stating that the Mexican Legal system is flexible and permits the foreigners to conduct the business in the country. The laws and regulations assist the outsiders and the citizens of the home country to conduct trade and business in the scenario country. Moreover, the legal system of Australia consists of various laws which are governed by the Constitution of Australia and the rules formed by the legislation passed by the Federal Parliament
References
Australian Law Reform Commission (n.d.). Authorizing what would otherwise be a Tort. Retrieved July 13th, 2018 from https://www.alrc.gov.au/publications/right-sue-tort
Barker, K., Cane, P., Lunney, M. & Trindade, F. (2012). The law of torts in Australia. Melbourne, Australia: Oxford University Press.100-110.
Bently, L. & Sherman, B. (2014). Intellectual property law. Oxford University Press: USA. 1000.
Edelman, J., Goudkamp, J. & Degeling, S(2015) . Contemporary Problems in the Law of Contract . Australian Bar Review, 40(2015), 174–184.
Filosa, A. (2013). The New Mexico Structured Settlement Protection Act: Whose Best Interests Does the Legislation Protect?. Retrieved July 13th, 2018 from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2369080
Freyens, B. P. & Oslington, P. (2013). A first look at incidence and outcomes of unfair dismissal claims under fair work, work choices and the workplace relations act. Australian Journal of Labour Economics, 16(2), 295.
Fried, C. (2015). Contract as promise: A theory of contractual obligation.NY: Oxford University Press.1-195.
Ronconi, L. (2012). Globalization, domestic institutions, and enforcement of labor law: Evidence from Latin America. Industrial Relations: A Journal of Economy and Society, 51(1), 89-105.
Schwenzer, I., Hachem, P. & Kee, C. (2012). Global sales and contract law. NY: Oxford University Press.1-847.
Solove, D. & Schwartz, P. (2011). Privacy law fundamentals. USA: International Association of Privacy Professionals (IAPP). 1-15.
Stevens, R. E., Loudon, D. L., Gordon, G. & Williams, T. (2012). Doing business in Mexico: A practical guide. London: Routledge.88-104.
Whincop, M. J., Keyes, M. & Posner, R. A. (2018). Policy and Pragmatism in the Conflict of Laws. NY: Routledge.1-225.
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