Part A: Development of regulations to protect tribe members from violent acts of another member using Hart’s analysis of legal rules in the tribe’s constitution
In South America, a tribe developed a constitution which includes regulations regarding the protection of tribe members from violent acts of another member. Previously, no such regulations were established in the tribe, and the procedure for adjudication was informal. The purpose of developing this constitution is to make the process of adjudication formal by implementing appropriate laws on each tribe member. The constitution complies with Hart’s three-part legal system rules. The policies included in the constitution apply over all tribe members equally, and they are clear and unambiguous as per the rules of recognition. The rules of change are also included in the constitution because the constitution defines the procedure of changing, amending, adding and removing of laws. Lastly, as per rules of adjudication, the procedure of holding a person liable for his actions is given in the constitution along with the penalties which imposed on him based on his/her actions.
The rules which are included in the constitution for protecting members from violent acts include imprisonment for the guilty tribe member and financial penalties. Firstly, if a member uses violence against another tribe member, then he has to be found guilty in a proper trial in which he is punished for his/her actions based on which he/she has to serve a prison sentence. The duration of the sentence depends upon the seriousness of the crime and the injury suffered by the aggrieved party. Moreover, financial penalties are also imposed on the guilty tribe member to compensate for the loss suffered by the aggrieved tribe member due to the use of violence. These rules are developed in the tribe’s constitution to protect the members from violent acts and hold guilty members liable for their actions in a formal procedure to prevent the crimes in the future.
In England, the criminal legal system provides a number of penalties which are imposed on the people after providing of their crimes. The English criminal legal system considers that the criminal actions conducted by people are wrongs which are made against the whole society rather than a single person. The state has given the power to enact laws regarding criminal offences of parties to hold them liable for their actions. Until proven without a doubt, a person is not considered guilty in the English criminal law. The Criminal Justice Act and Criminal Law Act are two of the key legislatures which provide provisions regarding criminal actions of people. The penalties which are imposed by the court after proving a person guilty of a criminal offence include discharge, financial penalties, imprisonment and life imprisonment. The legal system also complies with Hart’s three-part legal system.
Firstly, the rules are clear and unambiguous, and they apply equally to everyone as per the rules of recognition. The rules of change are also given based on which the parliament has the right to add, remove or amend criminal laws. Lastly, the rules of adjudication are clearly defined based on which courts are given the right to hear criminal cases as per their jurisdiction. The Australian criminal legal system is similar as well because it is borrowed from the English legal system. The Crimes Act and the Criminal Code Act provides penalties which imposed such as criminals include discharge, imprisonment, life imprisonment and financial penalties. Hart’s three-part legal system rules are also applied to the legal system. The rules are clear, and the procedure of change is given as well. The courts have specified jurisdiction which is defined by the state.
Part B: Imposition of penalties once a person is found guilty of a criminal offence by a court in England and comparison with the range of penalties available to Australian courts in criminal cases
In Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd case, the issue raised whether the landlord has the right to terminate a lease agreement in case the tenant did not pay rent? Whether the loss of bargain can be demanded on breach of an essential term?
The lease agreement which is formed between parties regarding property is considered as a commercial contract. It means that the lease agreement has the features of a commercial contract. One of the key features of a commercial contract is that it can be terminated by the party in case another party did not comply with or violate an essential term. In case of a lease agreement, the payment of rent is the consideration of the contract which is referred as an essential term of the contract. In case the party failed to pay the rent of the property, then the agreement can be rescinded by the party. Similarly, on breach of an essential term, the aggrieved party has the right to claim the loss of bargain from the breaching party for non-compliance with the essential term of the contract.
A commercial property was given on lease to Duffy Bros Fruit Market (Campbelltown) Pty Limited (Duffy) for a period of 15 years by Transit Management Pty Ltd (Transit). Duffy was responsible for paying the complete rent of the property; however, it becomes difficult for the company to pay rent on time. Thus, Transit and Duffy formed a deed in order to sub-let the property to the third party. The property was given to a third party that has to pay half rent of the property. In 2001, Transit sold the property along with the lease rights to Gumland Property Holdings Pty Ltd (Gumland). In 2002, the sub-lease agreement of the sub-tenant was expired, however, the corporation did not want to increase the tenure of the lease agreement. The sub-tenant decided not to vacate the property and started paying only half the rent for the property than decided. Gumland sent a notice to Duffy regarding payment of rent in arrear, but, Duffy did not take any action regarding it. Gumland filed a lawsuit against Duffy in which it claimed the rent arrear, interest on such rent and the loss of bargain.
Gumland also terminated the lease agreement with Duffy. In the court, Duffy argued that the lease agreement included a range of terms and breach of a single term did not constitute to termination of the entire document. Duffy also provided that the loss of bargain cannot be demanded by Gumland. The court evaluated the case and provided a judgement by accepting the claims of Gumland. The court provided that just like other commercial agreements, the lease agreement can be rescinded on breach of an essential term which in this case is payment of the rent. Furthermore, the court held that Gumland could demand the loss of bargain because Duffy breached the terms of the deed which was formed based on the lease agreement, thus, an essential term was violated based on which the loss of bargain can be demanded. The rights of a landlord are highlighted in this case and the importance of compliance with essential terms, thus, this case is relevant in Australian law.
Part C: Analysis of the Gumland Property Holdings Pty ltd. V Duffy Bros Fruit Market ( Campbelltown) Pty Ltd case in business context and the Australian law of contract
Conclusion:
In conclusion, the landlord can terminate the lease agreement and demand the loss of bargain from the tenant in case an essential term of the agreement is violated. The remedies given by the court include payment of rent arrear, interest and the loss of bargain along with termination of the contract.
In Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No 4) case, the issue raised whether the representations made by the company regarding achievable gross realisation were considered as misleading or deceptive or likely to do so?
When a person made a false statement knowingly or without believes in its truth or recklessly without knowing the truth to another person in order to encourage him to sign a contract, then it is considered as a fraudulent misrepresentation. In case a contract is formed between two or more parties based on fraudulent misrepresentation, then it becomes voidable based on which the innocent party has the right to set aside the contract or comply with its terms. The Australian Consumer Law also provides various provisions regarding the security of customers and protection of their rights from wrongful acts of corporations. The Competition and Consumer Act provides guidelines which companies have to follow in order to ensure the safety and interest of customers. Section 18 of the act provides that corporations should avoid making any statements regarding their products or services which will mislead or deceptive the customers or likely to do so. Section 30 of the act prohibits companies from making statements regarding land or promising sell of land which are misleading or deceptive or likely to mislead or deceive.
In Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No 4) case, a lawsuit was filed by Arizona Limited Partnership against Colliers International (NSW) Pty Limited that the quoted ‘gross realisation’ value showed by the company was misleading and deceptive. It was argued in the court that Colliers was in the position to know the correct value of the property, but, a wrong market appraisal was conducted by Colliers to mislead or deceive its customers. Colliers conducted the market appraisal and provided that the value of the property could be sold for once developed was $6,250,000. Arizona Limited Partnership argued that the achievable gross realisation price which is concluded by Colliers is considered as fraudulent misrepresentation since its objective was to sell the property for $6,250,000 which was a false price. The court evaluated the case and provided the judgement that Colliers is liable for breaching section 30 of the Australian Consumer Law because the achievable gross realisation of the property made by the company is misleading or deceptive. The court held that the company had made a false or misleading representation regarding the property in order to encourage customers to sign a contract with the company to form a legal contract based on which it is liable for fraudulent misrepresentation. This is a relevant case in the Australian law because it provides that corporations should avoid making false claims which are misleading or deceptive in order to avoid legal consequence.
Part D: Understanding fraudulent misrepresentation and the right of the innocent party to cancel the contract using the Slater v Finney case as a reference
Conclusion:
In conclusion, the valuation made the company regarding a property was considered as a breach of section 30 of the Australian Consumer Law by making false and misleading statements regarding the price which is to be paid for the land. The company was held liable for fraudulent misrepresentation because the purpose of such false claim was to form a contract with customers. The court awarded the remedy by ordering the company to pay the security for costs in the amount of $100,000.
The issue is whether the contractual term can be enforced by Pedro on Lisa?
The contract law provides that parties of a contract entered into a legal relationship. In the legal relationship, the parties have the right to hold other parties liable in case they did not comply with the contractual terms. Parties have the legal obligation to ensure that they did not violate the contractual terms and comply with them. In case a term of the contract is violated by the contracting party, then the aggrieved party has the right to enforce such term on the first party. However, this right is only available to the contractual parties if the contract formed between them is valid. In case of an invalid contract, the parties did not have the right to enforce its terms on another party. A valid contract is formed when all the essential elements of the contract are fulfilled by the parties. Firstly, the offer to form the contract must be made by a party in which certain terms must be specified. The court provided in Harvey v Facey case that the offer must have the authority to bind the offeror into its terms after it is accepted by the offeree.
In Entorres v Miles Far East case, it was held that the acceptance for the offer must be certain and communicated by the offeree before the offer become ineffective. The consideration of the contract must be valid because illegal consideration did not form a contract. However, in Chappell v Nestle case, it was held that consideration of a contract need be adequate, but, it must be sufficient. The parties forming the contract must be competent to form the contract. It means that they must have the authority to bind themselves into legal relationships; therefore, parties such as insolvent, unsound mind and minor are not able to form a valid contract. Finally, while forming the contract, the parties must have the intention to create a legal relationship. In Balfour v Balfour case, the court provided that agreements which form between parties in social situations or domestic settings did not form a valid contract because parties did not have an intention to create a legal relationship. The remedies available for aggrieved parties in case of violation of the terms of the contract include injunction, repudiation, rescission, damages, and specific performance.
In the case study, a contract is created between Pedro and Lisa. The French jewellery business of Lisa is purchased by Pedro. A term is included in the contract in which Lisa is prohibited from opening another French jewellery business in Australia for two years from the contract. The parties are competent to contract, and a valid offer and acceptance are given by them. Both of them have valid intention to create a legal relationship, and a valid consideration is present in the contract as well. After one year of the contract, Lisa opened a French jewellery business in Cairns, Queensland. Since all the elements were present, thus, a valid contract has formed between Pedro and Lisa. Based on the contractual term, Pedro has the right to enforce Lisa to comply with the terms of the contract.
Conclusion:
In conclusion, Pedro has the right to enforce the contractual terms on Lisa because a valid contract has formed between them. The remedies which Pedro claim against Lisa include injunction to stop the business operations, specific performance to shut it down and damages for the loss suffered by him.
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Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Limited (No 4) (2011) FCA 442
Balfour v Balfour (1919) 2 KB 571
Chappell v Nestle (1960) AC 87
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
Competition and Consumer Act 2010
Crimes Act 1914
Criminal Code Act 1995
Criminal Justice Act 2003
Criminal Law Act 1967
API, API’S SUBMISSION RE PROPORTIONATE LIABILITY MODEL PROVISIONS (2014) Justice NSW < https://www.justice.nsw.gov.au/justicepolicy/Documents/australian_property_institute.pdf>.
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