Part A: Rules Protecting Tribe Members from Violence in South Africa
A constitution has developed in a tribe of South Africa which includes various provisions regarding penalising the violent actions of the tribe members. Before developing the constitution, the tribe members did not have a formal structure to settle violent disputes occurred between two tribe members and the process of punishment was informal. The procedure was unclear as well, and most tribe members were unaware of their rights. The objective of the constitution is to provide policies which govern the criminal actions of a tribe member against another tribe member. Various rights are given to tribe members in the constitution, and a clear procedure for penalising is defined as well. The guilty member can be imprisoned for a specific period, or his valuable personal belongings can be taken to punish him for his actions. These policies are developed to hold the guilty personal liable based on a formal procedure which is given in the constitution of the tribe.
The constitution complies with the provisions given under Hart’s three-part legal system. As per the rule of recognition, people were not aware regarding the laws previously. Now the constitution has established clear and rigid policies, and all tribe members are aware of them. As per rule of change, a procedure for making changes in the policies is given in the constitution as well. The constitution provides provisions regarding making adding, amending, changing and removing the laws based on which tribe members can be held liable for their violent acts. As per rule of adjudication, the process of judgement is given in the constitution as well. The procedure of adjudication applies to all the members of the tribe. The rules which protect tribe members against violence include punishment to the member who uses violence against another member.
In India, a clear criminal procedure has established by the government in order to hold the guilty person liable for his/her actions. The Indian criminal law is borrowed by the English Law under which the crimes are considered as wrongs against the whole society rather than a single individual. In India, the Indian Penal Codeprovides various penalties which can be imposed by the court after conducting a fair trial and holding a person liable for his actions. Furthermore, the Code of Criminal Procedure provides that procedure based on which a person can be held liable and the process for the court to penalise him. The penalties which are given to a guilty person include financial penalties, jail time, life imprisonment and capital punishment. The punishment is given as per the seriousness of the crime. These rules comply with Hart’s three-part legal system.
Part B: Comparison of Penalties for Criminal Offenses in India and Australia
Firstly, these rules are clearly defined in the legislation, and they apply to the whole country. The procedure for making changes in these regulations is given in the constitution as well, and the parliament has the power to add, remove or amend any laws. The procedure of adjudication is given in the Code of Criminal Procedure based on which different courts have given rights to entertain cases based on geographic locations or the punishment. The criminal procedure in Australia is borrowed from English law as well, and penalties are the same as well which are given in the Crimes Act. However, the Australian government has abolished capital punishment from the country, whereas, it is not the case in India. The legal system in Australia complies with Hart’s three-part legal system as well. The rules are clear and applied to the country. The procedure for change is mentioned along with the process of adjudication.
The key issue, in this case, is whether the landlord of a property can terminate the lease in case the tenant does not pay the rent? Whether the landlord can demand damages along with the loss of bargain for the tenant in case of breach of an essential term of the contract?
While entering into an agreement, a lease contract is signed by the landlord and the tenant in which various terms and conditions are included which binds both the parties into its terms. The lease agreement is not considered as any different for other commercial agreements based on which the payment of rent is considered as an essential element of the rent document. The rent is considered as the consideration of this contract, thus, breach of this term gives the right to the landlord to end the lease agreement. The payment of rent is considered as an essential term of the contract based on which the parties can rescind the agreement. Moreover, in case parties to the lease agreement did not comply with its terms and conditions, then they can be held liable for such breach, and the innocent party can hold them liable for damages.
A shopping complex was given on lease by Transit Management Pty Ltd (Transit) to Duffy Bros Fruit Market (Campbelltown) Pty Limited (Duffy) in the case of Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd. The tenure of the lease was for a period of 15 years; however, a deed was constructed between Duffy and Transit to sub-let the property because Duffy was unable to afford the rent of the property. In 2001, the property was sold to Gumland Property Holdings Pty Ltd (Gumland) along with the lease rights. In 2002, the sub-lease was expired, and the sub-tenant did not vacant the location and starting paying only half rent for the property. Gumland demanded the full rent from Duffy and after failing it filed a suit against Duffy. In the suit, Gumland claims damages from Duffy for unpaid rent along with interest as loss of bargain and reinstatement damages.
Part C: Analysis of Gumland Property Holdings Pty ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd.
Gumland also cancels the lease based on non-payment of the rent. Duffy argued in the court that payment of the rent is only a term based on which the agreement cannot be terminated. Moreover, Gumland cannot demand loss of bargain based on breach of the term of the deed formed between the parties. The High Court provided that payment of rent is an essential term of the contract since the rent is the consideration of the contract. Thus, the lease contract can be terminated by Gumland for non-payment of rent by Duffy. Furthermore, the deed which formed between the parties was not a separate document; instead, it was a part of the lease agreement. Thus, Gumland has the right to claim the loss of bargain from Duffy for the breach of terms of the deed by him. This case is relevant in Australia since it provides the importance of the term of rent payable in the lease agreement and how violation of this agreement results in termination of the contract.
Conclusion
To conclude, the landlord has the right to terminate the lease agreement on non-payment of rent, and it can demand damages including the loss of bargain in case of violation of the terms of the contract. The remedies issued by the court include a sum of $2,096,514 which is given by Duffy to Gumland for breach of the lease agreement and terms of the deed
The key issue, in this case, is whether an insurer can terminate the contract of insurance claim policies which is formed based on fraudulent misrepresentation and non-disclosure of facts and whether the paid money is recoverable?
Fraudulent misrepresentation is referred to a statement made by a party which is false, and the purpose of such statement is to encourage the party to sign a contract. Any statements or facts given by a party to another at the time of construction of the contract which is untrue and those statements are made to induce the party to construct a legal relationship is considered as fraudulent misrepresentation based on which the contract becomes voidable. The innocent party can either comply with the contract or set it aside as per its discretion. The key elements of fraudulent misrepresentation include that the party making the statement must know the fact that such statement is untrue. The purpose of such statement is to form a contract, and the innocent party must suffer a loss due to relying on such statement. Moreover, the consumers are protected from the fraudulent misrepresentation of corporations based on the provisions given in the Australian Consumer Law. The Competition and Consumer Act 2010 prohibits anyone from making any statement which is misleading or deceptive or which is likely to do so as given under section 18. Section 29 prohibits parties from making a false statement regarding goods or services which is misleading or deceptive or likely to do so.
Part D: Fraudulent Misrepresentation in Australian Contract Law
In Dr Gregory Moore v The National Mutual Life Association of Australia Limited, Dr Moore made a false representation regarding his drug addiction, occupation, and income while taking an insurance policy. Later, Dr Moore made a claim to recover the money; however, the insurance company rejected his claim based on fraudulent misrepresentation and non-disclosure of facts. Dr Moore provided that the company has waived its rights to terminate the contract based on fraudulent misrepresentation by affirming the contract. The court provided in its judgement that Dr Moore is guilty of non-disclosure and fraudulent misrepresentation because he told false facts to the insurer which he knew were untrue. The court provided that the insurer did not give affirmation of an unequivocal election because the payments made under the policy did not amount to an election. However, the court provided that the insurer organised a medical examination of Dr Moore before giving the policy and it also required Dr Moore to provide a monthly claim form by his treating doctor.
Based on these facts, the court considered that actions of the insurer in the past few years as an election. However, the court also provided that the election is made by the insurer without knowledge of all the relevant facts. Since the decision of the insurer to complete the investigation was deliberate, the court did not consider it an affirmation based on which the contract can be set aside based on fraudulent misrepresentation and non-disclosure of facts. However, the court held that the insurer could not recover the amount payable to Dr Moore because he failed to conduct an appropriate investigation based on which it has accepted certain risks. This case is relevant to understand how a contract can be set aside based on the fraudulent misrepresentation; however, the party did not have the right to recover all damages if it failed to take reasonable care.
Conclusion
To conclude, the insurer can terminate a contract based on fraudulent misrepresentation and non-disclosure of facts, however, paid money is not recoverable due to the failure of insurer to conduct appropriate investigation. The remedies include termination of the insurance contract based on fraudulent misrepresentation
The key issue is whether Pedro has the right to enforce the terms of the contract against Lisa?
The parties how formed a valid contract are binding by its terms, and the parties can legally enforce each other to comply with the terms of the contract. It is important that the parties must form a valid contract in order to bind each other to its terms. There are various elements which are necessary to be present in order to construct a valid contract between parties. An offer must be made by the offeror to the offeree to do or not do certain acts. As given in Harvey v Facey case, it is important that the offeror must have an intention to bind him by the terms of the offer. The acceptance must be given by the offeree to form the contract and bind each party into its terms. A certain acceptance is being given by the offeree without changing the terms of the offer. In Entorres v Miles Far East case, it was held that the party must communicate the acceptance within appropriate time. The intention of parties to form a legal relationship is another key element which is necessary to form a legal contract between parties.
Part E: Enforcement of Contractual Promise using Common Law Principles
In Jones v Padavatton case, the court provided that the agreement formed between parties in social settings did not form legally binding contracts since parties did not have the intention to enforce each other legally. The consideration is a key element of the contract which is referred to the bargain of the contract in which a party receive benefit and other suffers detriment. The consideration of the contract must have certain value in the eyes of the law as given in the judgement of Thomas v Thomas case. Moreover, past consideration is not valid, and a contract cannot be formed between parties based on it as given in the case of Re McArdle. The capacity of parties is also necessary to form a valid contract. Parties who are unsound mind, insolvent or minor did not have the capacity to form a legal relationship with other parties. In case of breach of a contractual term, parties can claim remedies from the court which include repudiation, damages, rescission, specific performance and injunctions. The remedies are issued by the court after evaluating the situation.
In this case, Pedro has purchased the business of Lisa by signing a contract. A contract is formed between both the party and a term of such contract prohibits Lisa from starting her own French Jewellery business within two years of formation of the contract in anywhere in Australia. Lisa has started her French Jewellery business within one year of signing the contract in Cairns, Queensland. In order to enforce the contractual terms, it is necessary that a valid contract has formed between the parties. All the elements of a valid contract are present in the case, and both parties are competent to form a legal relationship. Thus, Pedro has the right to legally enforce Lisa to comply with the terms and close her business.
Conclusion
To conclude, Pedro can legally enforce Lisa to shut down her business to comply with the term of the contract formed between them. The remedies which Pedro can demand include the specific performance of the terms of the contract and damages for the loss suffered by him.
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Competition and Consumer Act, 2010
Crimes Act, 1914
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Dr Gregory Moore v The National Mutual Life Association of Australia Limited (2011) NSWSC 416
Entorres v Miles Far East (1955) 2 QB 327
Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237
Harvey v Facey (1893) UKPC 1
Jones v Padavatton (1969) 1 WLR 328
Re McArdle (1951) Ch 669
Thomas v Thomas (1842) 2 QB 851
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