BULAW5914 Commercial Law Assignment Sample
Topics covered by Assignment - Topics C & D
Maximum word limit - 3000 words
Total marks - 30
Percentage of final grade - 30
Referencing - APA 7th edition or AGLC 4th edition (available online)
The assignment will be assessed on the extent to which the student has:
? Conducted independent research relevant to the topic, including the use of secondary legal sources including, several legal texts, authoritative materials from internet sites and academic (peer reviewed) journal articles and books.
? Answered the set question(s) through identification and discussion of relevant legal issues.
? Demonstrated an understanding of the topic, presented different points of view (if applicable), presented well-constructed arguments and demonstrated critical thinking.
? Provided proper citations for legal sources in footnotes and a bibliography or reference list.
? Used clear expression.
Students should refer to relevant case law and legislation in their response for assignment help
Question 1 (15 marks)
Hubert is a solicitor in an old, established and respected law firm. Cyril is a longstanding client and friend, who has long entrusted some of his most delicate family matters to Hubert.
In the course of advising Cyril as to how best invest his large amounts of money, Hubert suggests that, given five years, a particular piece of property will probably be worth much more than it is now. Coincidentally, the property belongs to Hubert’s wife Marion.
Cyril enters into a contract to purchase the property, but before taking possession discovers that it is flood-prone and salt-affected, and that it is highly likely that he will make a loss on resale. Cyril desperately wants to get out of the contract.
Advise Cyril if he can avoid the contract? If yes, explain the principles of Contract Law he should rely on. Refer to at least one case in support of your answer. (15 marks)
Question 2 (15 marks)
The exit from Opal Ltd.’s loading dock is via a poorly lit alley between two buildings. The alley crosses a footpath before emerging into the main street. Drivers and passing pedestrians have difficulty seeing one another and Opal Ltd has, therefore, put a large sign near the end of the alley reading, ‘Drivers must sound horn’. It also considered placing convex mirrors on the side walls of the buildings at the end of the alley so that drivers could check for approaching pedestrians but discarded the idea because it would have been very expensive and because ‘no-one else does it anyway’. Phil, who had just made a delivery to Opal Ltd, drove out of the alley sounding his horn as he did so. Unfortunately, Quinlin, a profoundly deaf pedestrian who was approaching the entrance to the alley at the time, did not hear the horn and, as Phil emerged from the alley, his truck struck Quinlin and injured him badly.
Are either Opal Ltd or Phil liable to Quinlin in negligence? Analyse each elements of the tort of negligence with reference to relevant case laws in support of your answer. (15 marks)
When an individual forms a contract with another individual, they must consider all the laws related to the agreement if any issue arises. Therefore, individuals need to understand the legal system that governs contracts. On the other hand, it is also necessary for both parties to understand the consequences they might face if any type of exception is made (Welmans & Naughton, 2018). If an individual or a party enters into a contract with the Australian parties, that is overseen by the Australian State or Territory. They should have a good idea of the various aspects and the principles of Australian contract law. Australian contract law is mainly based on the "English common law" and not on any type of statute law.
In the above case study, it can be seen that Hubert is a solicitor in a law firm, and Cyril is his client. Hubert and Cyril are closely associated with each other, and Hubert informs his friend that if he invests a large amount of money in a particular property, he might get a much bigger return from the property five years from the present time. Coincidentally, the property Hubert advised his friend Cyril to buy is the property of Hubert's wife. Therefore, with the assurance of his friend, Cyril entered into a contract to purchase the property mentioned above. However, before he took possession of the property, Cyril discovered that the property was highly damaged by salt and was prone to flood. Therefore, Cyril will experience significant losses other than earning a profit if he decides to sell the property years later.
One of the most important principles followed by the Australian contract law is the freedom of contract. This states that the parties bound by the contracts can choose to strike the bargain of their choices (Micklitz et al., 2018). However, it is observed that there are mainly six principles of contract law. These are known as agreement, consideration, intention, capacity, genuine consent and legality.
The first principle is called the principle of agreement. This principle states that both parties must agree to a particular offer, and to validate the offer, both parties must consent to the agreement. Therefore, one party must make a clear and precise offer to form a contract. Meanwhile, the other party has to accept that offer. The second principle is known as consideration. It states that other than a few exceptions, there must be considerations that have to be made before a contract is legally formed (Awdry & Newton, 2019). Other than that, contract formation cannot go ahead. Consideration is known to be the promised exchange between two parties. Therefore, it can be considered that consideration might be of any form, such as payment of money or delivery of products or services. Promises need to be made so that the other party cannot enforce any kind of new rule without consent.
The third principle is known as intention. According to this principle, each person or party, while they are entering into a contract, needs to have an intention of being bound by it. Therefore, if a person is to be bound by a legal contract, then they must have a serious intention to create "legal obligations" (Thompson, 2018). They must also intend that the contract is a form of a legal agreement and may have legal consequences. The fourth principle is known as capacity. According to this principle, both parties must possess the capacity to understand the actions taken by them. According to the common law observed and maintained in England, any individuals other than a few exceptions are eligible to enter into a legal contract.
However, the individuals that are considered exceptions might not have the necessary capacity to enter into a legal contract. These individuals are people under the age of 18, people with mental impairment and people under alcohol and drug influence (Phang, 2021). Therefore, if a person wants to avoid a contract, they must ensure that they lack the capacity to enter a contract and the other party is aware of their inability. On the other hand, the same can be said for individuals with mental instability or those who are intoxicated.
The fifth principle that is vital in Australian contract law is known as genuine consent. It states that both parties can enter into or form a contract of their free will. However, genuine contracts might be affected by some issues. For example, undue influence can be observed while a contract is being formed (Frawley, Goh & Law, 2019). This occurs when one party influences the other concerned party in a way where they enter into a contract involuntarily. Therefore, if the influence is “undue”, then the court may set aside the contract. It can also be seen that there might be any kind of misinterpretation while forming the contract. This happens when one party provides false information to the other party while they are forming a contract with each other. Therefore, if an individual forms a contract while relying on misleading information and suffers property loss, then they may cancel the contract.
Duress is known to be threatening violence that is used to earn a contractual promise (Wiseman, Sanderson & Robb, 2018). Therefore if it is observed that the contract is earned with duress, then the weaker party may avoid the contract with the stronger party. On the other hand, unconscionable conduct is also helpful in dealing with transactions between weaker and dominant parties. Therefore, it sometimes overlaps with undue influence and duress. The sixth and final principle is known as legality. It states that every part of the matter of the contract has to be legal. On the other hand, it is also seen that financial agreement, section 90UJ and 90G of the “family law act” are considered to be relevant (Foong, 2018). This requires every party to a financial agreement so that they can receive legal advice independently. This also states that the parties must meet certain requirements before proceeding with a financial agreement.
Therefore, the principle that can be applied in the case of Cyril is the genuineness of contract and agreement. As Hubert convinced Cyril to purchase the property concern, he entered into a contract to buy the property without giving much consideration to the property. One of the most notable cases that happened regarding the genuineness of contract in the case "Carlill vs Carbolic Smoke Ball", which took place in 1893 (Williams, 2019). In this particular case, the defendant, in this case, the “Carbolic Smoke Ball Company”, placed a particular advertisement in a newspaper to advertise their products. They stated that if any individual purchased their products and used them and still came into contact with influenza, then they would be given 100 British pounds in return. The company also deposited 1000 British pounds in a bank account so that this could act as a reward. Mrs Carlill, an individual living in England, purchased the smoke balls. Even after she used the smoke balls, she came in contact with influenza. Therefore, she proceeded to claim £100 from the company (Thompson, 2018).
Meanwhile, the defendant denied the claim and claimed that the advertisement was merely an invitation to a treat and was not an offer. The claim was not true to its intent and could not be made to the world. Meanwhile, the claimant stated that she could not accept the statement provided by the company and said that the wording used in the advertisement was not clear and was insufficient. She also said that the company did not keep any kind of consideration to the necessary law while creating a contract. This created an uncomfortable environment for both the defendants and the claimant. Therefore, they had to go to court to settle the issue (Micklitz et al. 2018).
After the case was presented to the "Court of Appeal", it was observed that the court was able to solve the case after a considerable amount of time. The court found the advert mainly amounted to the offer for a particular contract which is unilateral by the defendant. On the other hand, the court also found that Mts. Carlill agreed to the conditions provided by the defendants. However, the court also found that the assertion of the company in terms of a strong intent was negated by their own advertisement claims and strongly lacked sincerity (Welmans & Naughton, 2018). Therefore, the court rejected the arguments made by the company and stated that a contract was indeed in place. Therefore, the court provided a verdict that the company would have to provide £100 to the defendant, in this case, Mrs Carlill.
Therefore, it can be considered that Hubert provided false information to Cyril in terms of purchasing the property. On the other hand, it can also be visible that Cyril entered into a contract under the influence of Hubert. Therefore, Cyril might appeal to the court regarding this case and claim that he was given false information because the property that is being sold to him is the property of Hubert’s wife. Thus, the court can help him negate the contract.
Negligence usually takes place when one person is responsible for causing damage to the property of another individual or the individual himself/herself carelessly or recklessly (Fraley, 2018). This occurs when an individual performs a certain action or fails to perform a necessary action at a given time. In the given case, it is seen that the entrance alley of Opal Ltd. is poorly lit, and drivers and pedestrians have trouble seeing each other while they are inside the alley. They also kept a sign in front of the alley and made it mandatory for the drivers to sound horns. They considered placing a convex mirror in front of the sidewalls of the company building but decided not to go forward with it. On the other hand, it can be seen that Phil, a delivery truck driver, sounded his horn while exiting the alley and came in contact with Quinlin, a deaf man. As Quinlin was unable to hear the sound of the horns, Phil unintentionally hit him and badly injured him.
Therefore, it can be seen that the company has been irresponsible to a great extent. According to the laws of the court, it can be considered a tort of negligence (Holly, 2020). It can be observed that there are several elements of negligence. These elements are known as the "duty of care", "breach of a duty of care", "cause of damages", and "damages".
The first element is known as the duty of care. Therefore, to determine negligence, it needs to be considered whether the defendant owes the plaintiff a "duty of care". It is seen that there ar4e multiple situations where a legal duty is formed in the relationship between the plaintiff and the defendant. Therefore, when the relationship is recognised by the law, then the duty of care appears. Therefore this states that one party has the same level of duty and obligations as the other party when a particular situation arises (Gordon, 2021). Therefore, in case of an unfortunate event, one party must take responsibility for the consequences suffered by the other party.
The next element of the tort of negligence is known as the breach of duty. This is considered to be the element that becomes valid when an individual does not perform any duty that he is supposed to do or is doing something that he is not supposed to do. A jury might consider the defendant to be negligible if an average person has knowledge of everything that the defender has knowledge of or might have been aware of the fact that their action might cause harm to any individual (Cooney, 2021).
On the other hand, the third element of the tort of negligence is known as the causation or the cause, in fact. It requires the defendant to show that the negligence or the breach of duty of the defendant is responsible for the injury suffered by the plaintiff. Another thing that needs to be considered is if the defendant was able to foresee whether his or her action had the potential to cause their injury. Therefore, if the action that is taken by the defendant was of an unexpected kind of nature and caused injury to the plaintiff, then they can be deemed as not responsible for the injury caused to the plaintiff, and charges cannot be taken against them (Gordon, 2021). On the other hand, the “proximate cause” is considered to be an event which is related to the injury and which might have been the cause of the injury in concern. It is also known to be an action that is responsible for the formation of predictable consequences without being intervened by any other party. This is also known as the “legal cause”.
Damage is known as the final element of negligence. If the plaintiff suffers any kind of injury or damage due to the actions of the defendant, then they are eligible for compensation. The plaintiff might experience damage in numerous ways. This includes the care of medical, any type of emotional turmoil or lost wages (Cheluvappa & Selvendran, 2020). Therefore, if the defendant, voluntarily or involuntarily, causes any kind of damage to the plaintiff when they are fully aware of the consequences, then they are bound to provide compensation to the plaintiff. On the other hand, if unforeseen events cause damage to the plaintiff, then the defendant might avoid giving expenses to the plaintiff.
One notable case in the tort of negligence is known as the “Bolam v Friern Hospital Management Committee'' case that took place in 1957. This is also known as a case that contributed to the reconstruction of the tort of negligence. In this case, it was seen that the claimant, known as Mr Bolam, was admitted into a mental healthcare hospital. He was undergoing electroconvulsive therapy to treat his mental illness. Therefore, it was the responsibility of the doctors to give proper care and healthcare services to the patient according to the practices observed in the hospitals and give assurance to him that the therapy is necessary for him to recover (Stoyanova, 2020).
Meanwhile, it can be observed that the patient had doubts and questioned the practices of the doctors. While undergoing the therapy, doctors did not give him any type of relaxant drug, and as a result, he suffered a fracture. However, if a relaxant drug was not given to him, then they could have suffered from a small chance of death instead of having a small chance of fracture. Therefore, it was deemed that the hospital did not breach its duty and did what was best for the patient (Allars, 2020).
On the other hand, in this case, it was observed that a test was performed to determine the care standards in the hospitals. This is also known as the “Bolam Test”. After performing the test, it was determined that there was no breach of duty or causation in this case. This is due to the fact that the healthcare professionals acted as per the practices recommended by other medical experts in that particular field of study (Goudkamp, 2019). Meanwhile, it was also found that the patient would have also experienced early demise if relaxant drugs were not used on him. Meanwhile, the fracture was unintentional; and unforeseen as it was an exceptional case, and this practice would be considered safe. Thus, the court gave a verdict in favour of the defendant.
Another instance where negligence has been found is the case of "Palsgraf v Long Island Railroad". This particular case took place in 1928. In this case, the claimant was standing on a railway platform and was purchasing tickets. While she was busy purchasing tickets, two men ran to catch a train that was leaving the station. However, one of those two men tripped. While the railway staff was busy helping him, they mistakenly caused a box full of fireworks to fall. As a result, the fireworks exploded. This also caused a set of scales to explore. Meanwhile, it can also be observed that due to the falling of scales, the plaintiff was injured. The defendant made an appeal to the supreme court of the US and stated that they were not responsible for the accident to take place.
In the end, the court stated that the defendant was not in any way liable to the plaintiff. Meanwhile, it was also determined that the plaintiff must bring proof of negligence so that she could prove that there had been some sort of violation of her rights. Even though it was determined that the railway guards were responsible for the fireworks to fall down and being ignited, they were not directly responsible for the injury caused to the plaintiff. There was no previous indication that the content inside the box was fireworks or it would cause any sort of injury to anyone. Meanwhile, the plaintiff was standing away from the box, and the injury caused to her was because of an accident. Therefore, the court gave a judgement in favour of the defendant.
In the current scenario, it can be seen that Opal ltd. had the responsibility to guide both the pedestrians and the drivers as the entrance to their office were dark and not suitable. They also had the responsibility to set up convex glasses that could have potentially prevented the accident for the plaintiff, Quinlin, in this case. However, they chose not to as it would be expensive. Therefore, Opal Ltd. is liable to Quinlin for negligence. They also need to pay compensation for the damages caused to Quinlin. However, Phil followed the guidelines set by Opal Ltd. and had not foreseen the accident that was caused to Quinlin. He tried his best to avoid the accident but, due to the unfortunate circumstances, could not manage to do so. Therefore, it can be stated that Phil is not directly Liable to Quinlin for negligence.
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