The Challenges Faced by Tribes while Forming Constitutions
In this study, proposal was developed by elders of the tribe which includes the several points that are incorporated in the constitutions of the tribe.
It addresses the several points and issues faced by tribes which are given as below.
Previous ruling
The Decisions given should be related to the case set up on the basis of previous ruling of the same case given by designated jurisdiction.
- It must be binding in nature and strengthen the implementation of the decisions and authority regulations which might result to vigorous punishment if not met.
- There should be proper equality for the applicability of the decision given by the jurisdiction or authority.
- Provision and rules implemented could be changed as per the related laws and regulation implemented.
- The entire issued jurisdiction should be binding in nature.
- There should be proper level of binding and should be based on different appeals in the appealing authorities.
- Each case will go through the different department and authority. For instance, if person is not satisfied with the jurisdiction one authority then it may go for the second appealing authority for revision of case. After that, the decision given by the appealing authority will override the decision given by previous authority.
- All the decisions and jurisdiction passed by the government should be based on the clear, true and fair evidences. It should be free from all sorts of mistakes and falsified document otherwise it may result to high amount of loss to the appealing party.
- The decisions of the one court will not contradict with the change in time and will be subject to
There are 3 legal systems of Hart which is based on the three rules by hart and explained as below
Rules of change- This rule focuses on the permit change in the existing rule for ensuring the eliminating and modification in the primary rule as per requirement.
Rules of recognition- It provide the foundation of the legal system on which will the legal and systematic laws will be undertaken. There are mainly two type of rules first is primary and second is secondary rules. The first one defines the behavior of person in society and second is related to providing the base for the primary rule. The tribe uses rules of recognition to form Rules of adjudication- The rule of adjudication focuses on the individual and institutions which have power to decide whether the person or group of person broke the primary rules and includes the entire person who is adjudicated. The tribe person considers these rules while farming and constitutions.
The Australian Legal system and hart’s rule- legal system of Australian recognizes all these three rules of the hart’s theory. The rules of recognition, rule of adjudication and rule of change. The Australian legal system accepts the theory of other experts and uses these different theories including the Hart’s theory to formulate the legal system. It has included all of its rules such as rules of recognition, rule of adjudication and rule of change in its legal system at various places. Nonetheless, the parliament has been using the power to frame laws and pass legislation in the association.
Whether it is possible for the Berry to challenge the validity of the contract in context of declarations made by the Angelo before entering into the contract?
Rule:
The rules focuses on the right and obligation of the parties in lieu of contract in which they have entered. The parties to the contracts need to resolute the conflicts with the contracts terms and legal system. It is observed that while evaluating the contract the terms of the contract needs to be based on the pre-contractual terms and conditions. The obligation and right of the parties will also be determined on the basis of the contract formulated. As per section 18 of the Australian consumer law, if any of the parties contradict the pre-contractual statements then it will result to breach of Australian consumer law and he has to face the penalties and charges given under act.
Legal Systems of Hart used in Australia
By using the oral written contract between the parties it may be hard for the parties to classify the statements under contract. One party to the contract induced the other party purchase the second hand computer by making the statement that computer was manufactured in 2012. The contract had several questions like what will be the output of the contract if breached. What are the terms and resolving method to solve the problem in contract? What are the contract and non-contractual outcomes if breached by the parties?
In order to form contract, it is necessary to enter into contract in written and add all the terms and condition which parties to contracts think fit. It must be ensured that intention to create legal relation between parties; it is required to determine the objective. The circumstance and other factors should also be considered while formulating the contract. As per the case law given, the case given in the case could be understood in better.
Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia.
In the given case, Judge adopted the position to evaluate the case. It is observed that one party represent the case in negotiation of the contract to act on the basis of representation. The other party will be bound to act on the contract once he signs the contract.
It is also called prima facia evidence for conducting such representation was intended as warranty under the contract.
It also includes collateral, and sufficient grounds were present that parties to contract intended to act upon the same when party represent their case against other party.
It is analyzed that pre-contractual contracts divulges the remedies under both common laws and statutory law which is given under the competition and consumer act 2010. Under the section of ACL states that any person who is indulged in trade or commerce functioning will not take action which is misleading or deceptive.
Misrepresentation is considered as false statement related to fact which was made one party to another party. However, it is not considered as term in the contract but it motivates other party to enter into contract. The outcome of the misrepresentation of the contract becomes voidable and resulted to viability of right to the innocent party to cancel the contract, ask for compensation and claim.
The misrepresentation of the contract covers the following details.
Materiality- Material in nature which misrepresentation made by party to another
Validity of Contracts under Misrepresentation Act
Rely- One party relies on the misrepresentation made by one party to another.
In the given case, Angelo attempts to make different pre-contractual statements for the turnover of the statement, expenses of business and competitors.
The signing of contract was covered under the misrepresentation. As Barry found the statements given by Anglo is not true. In this case, Angelo breached the contract under section 18 of the ACL and shows the misrepresentation of the contract under the same scenario.
There are two main factors on the basis of which this contract could be assessed as misrepresentation.
Materiality- the Misperception made by one party is false and has no base which resulted to no material base for the facts. Therefore, the contract entered with other party may result to void on the basis of misrepresentation.
This could be understood by using the case of Museprime Properties v Adhill Properties [1990] 36 EG 114.
This case divulges that if party induce another party on the basis of false facts and document which induce other part to enter into contract then the entered contract would be voidable against the against aggrieved party.
Reliance- Misrepresented must rely on the misrepresentation made by misrepresentation. Barry relies on the misrepresentation made by Angelo.
However, contract between the parties is affected by misrepresentation of facts made by Angelo, because of which contract is not binding.
Conclusion:
Now in the end, it could be inferred that Angelo divulges the misrepresentation in the entered contract to Barry. It resulted to Angelo made misrepresentation to enter the Barry into the contract of purchase of business, and breach section 18 of the ACL. Therefore, Barry can challenge the validity of the contract. Section 18 of the ACL and shows the misrepresentation of the contract under the same scenario.
What possible actions are available to Barry in context of breach of contract?
Rule:
It is found that if one person relied on the misrepresentation made by one party to another and entered into the contract then that contract would be voidable and could be breached under the two factors named recession and damages.
Rescission: It stands for the setting aside the contract provides the remedy to the aggrieved party who entered into the contract on the basis of false misrepresentation The main aim of this remedy is to put the parties back in the original form which reflects the contract entered into the parties. The injured party may cancel the contract by giving notice to other party.
Possible Actions Available to the Aggrieved Party under this Act
It could be understood by evaluating the case law of Car & Universal Finance v Caldwell [1965] 1 QB 525.
The one party of the contract in this case, cancels the contract immediately after finding the misrepresentation made by other party in the contract. He canceled the contract by sending notice to other party to the contract on the following grounds.
He acted unfair
One party was unaware about the misrepresentation
However, if in case, party fails to restore other party in the well condition then in this case, he will compensate the loss of other party. Contracts could be end by sending the notice and once other party accepts the same then the contract is terminated.
Court has discretions to validate the contract of sales even though the consumer already cancels it under the misrepresentation Act 1972.
Damages: It is alternative remedy to rescission and aggrieved party has right to ask for the damage or compensation.
In the case law given, Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158, In this case, Court held that the test of deceit law divulges that aggrieved party should be compensated for the damage made by other party to contract if he had to face loss due to the misrepresentation .
Judge uses his own discretions to determine whether the contract had the misrepresentation made by other party. However, he could validate the contract if he thinks fit on the basis of factors and evidences. There are following grounds to validate the sales contracts such as seller had resembled ground to believe it has true statement. The statement was made by one party to another and does not have idea about that statement was misrepresentation.
Application:
As Barry found the statements given by Anglo is not true. In this case, Angelo breached the contract under section 18 of the ACL and shows the misrepresentation of the contract under the same scenario. In this case, Barry could take action against such contract.
Barry found the statements given by Anglo is not true so he could cancel the contract under the breach of section 18 of the ACL and showing that the contract was entered on the basis of misrepresentation
Conclusion:
In this case, it could be concluded that Barry could cancel the contract on the basis of two facts such as rescission and damages. He could also ask for damage if he had any loss by entering into the contract with the Anglo on the basis of misrepresentation
Website
ACL, Ellul and Ellul v Oakes, (1972) 3 SASR 377, < https://www.australiancontractlaw.com/cases/ellul.html>, accessed on 1st may 2018.
ACL, Misleading or Deceptive conduct, < https://www.australiancontractlaw.com/law/avoidance-misleading.html>, accessed on 1st may 2018.
ACL, Terms of contract, < https://www.australiancontractlaw.com/law/scope-terms.html#pre>, Accessed on 1st May 2018.
Law handbook, Misrepresentation, < https://www.lawhandbook.sa.gov.au/ch10s02s10.php>, accessed on 1st May 2018.
Articles
Burton, S. J. (1980). Breach of contract and the common law duty to perform in good faith. Harvard Law Review, 369-404.
Treitel, G.H., 2003. The law of contract. Sweet & maxwell.
Leng, J., and Wei, S. (2017). The Evolution of Contract Law in China: Convergence in Law But Divergence in Enforcement?.
Carter, J. W., Courtney, W., and Tolhurst, G. (2017). AN ASSIMILATED APPROACH TO DISCHARGE FOR BREACH OF CONTRACT BY DELAY. The Cambridge Law Journal, 76(1), 63-86.
Car & Universal Finance v Caldwell [1965] 1 QB 525.
Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158.
Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia.
Museprime Properties v Adhill Properties [1990] 36 EG 114.
Oscar Chess Ltd v Williams and Dick Bentley Products Ltd v Harold Smith (Motors) Ltd.
Macaulay, S., 2018. Non-contractual relations in business: A preliminary study. In The Law and Society Canon (pp. 155-167). Routledge.
Stone, R., & Devenney, J. (2017). The modern law of contract. Routledge.
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