discuss the remedies available for a breach or non-performance of a contract. include a discussion of how damages may be limited, the difference between a deposit and a down payment, the requirement of mitigate, and the availability of specific performance and injunction.
SAMPLE ANSWER
Breach of Contract
In court with limited jurisdiction, the main form of remedy of the award of damages since specific performance and rescission are equitable remedies that are given by courts of higher jurisdiction.
The limitation is that damages cannot be recovered for losses that could have been reasonable avoided by the act of the other party or substantially ameliorated after the breach of the contract has taken place.
In addition, the award of damages can be reduced by the amount that can be reasonably avoided if the non-breaching party fails to use reasonable diligence in damage mitigation.
Other forms of remedy include cancellation, specific performance, Quantum Meruit, and restitution. According to Tepper (2011), the person who suffers the damages or the breach of contract has the legal obligation to sue the other party with the aim of minimizing the effects of such losses.
The duty to mitigate works to deny recovery of any part of the damages that could have been avoided if the other person would have acted in normal circumstances required by the law.
The availability of specific performance is government by a set of principles to avoid its arbitrary enforcement and possible abuse of human rights. In this regard, specific performance is only available if it is the appropriate approach appropriate in accordance with the nature of the facts presented in the courts.
Specific performance will not be awarded if the contract was unconscionable, the contract it too vague to be enforced, and when the specific performance is impossible (Tepper, 2011). Injunction is an equitable remedy that can be applied in breach of a contract by the courts compelling the other party to refrain or to continue with specific acts in the case.
Deposit and down payment are different in that the former is a consideration by the buyer to the seller to put the property on hold while he looks for the rest and the latter is the portion of the purchase prince that the seller pays while he seeks the financing from other sources.
Reference
Tepper, P. (2011). The Law of Contracts and the Uniform Commercial Code. Cengage Learning; 2 edition
describe the various ways in which a contractual relationship can to an end, including partials performance, conditions and warranties, tender of performance, impossibility, anticipatory breach, fundamentals breach, frustration, impossibility, and exemption clauses.
SAMPLE ANSWER
Ending Contractual Relationship
There are several ways that can result in ending of the contract relationship between two parties. In the case where there is no clear date of terminating the contract, the doors are always open for negotiation to clarify the termination terms of the contract. Mutual agreement occurs when the parties in the contractual agreement deem it necessary to end the contract. A contract a can be terminated when one party has performed its required obligations according to the contract and the other party has not been able to do his duty accordingly (Tepper, 2011). This is termed as the accord and the satisfaction method implying that one party has been disappointed by the failure of the other and the contract has to be terminated. It can as well happen when the other party has done something contrary to the original terms of the contract, resulting to the frustration to the contract.
The other method is the release method that occurs when one party has completed all his obligations in the contract. A release type of contract termination is in the form of a deep consideration that is highly esteemed by the party that is in charge to ensure the contract is terminate for its success. Contract can as well be terminated under frustration circumstance that shows the parties are unable to perform their duties under the given contract (Tepper, 2011). A contract will be terminated when parties are willing to continue but this time using different terms from the other contract. This can be defined as the novation or substitution contract termination method caused by continued liabilities among the parties. A contractual agreement can also be terminated on the grounds that the issue to the contract is impossible to perform due to unavoidable circumstances.
question four
what are the necessary elements that must be present for a person to be classified as a trespasser? consider the context of a homeowner with unruly guests, or a business with unruly patrons. apply the trespass to property act in your answer.
question 5
explain with reference to decided cases, what a person must do to establish negligence. expand on the tests which may be applied and discuss what remedies and defence are available. how does negligence relate to professional liability?
question 6
explain the types of mistake and the types of misrepresentation which can give rise to a court being required to interpret a contract. what remedies are appropriate to each type?
question7
distinguish among duress, undue influence, and unconscionability and give two examples of each. describe the remedies available for each type.
question8
describe the types of assignments which may occur. give two examples of each. consider what requirements are necessary to make an enforceable assignments.
SAMPLE ANSWER
Commercial Law Essay Questions
Trespass is the invasion of another person’s possession without his consent thus interfering with his property rights. The main elements of trespass are unlawful intrusion to the property, the use of force, intent of intrusion, and the subsequent injury to the owner. For one to enter into someone’s property, the law requires that he or she should first seek the consent of the owner in order to avoid violating the other person’s rights. The failure to inform the owner would amount to trespass, leading to possible prosecution in the courts of law (Sealy & Hooley, 2008).
For negligence to occur, the defendant must owe a duty recognized by the law to the plaintiff, failure by which would lead to possible harm as was the case in Bolton v. Stone. Negligence are highly related to professional practice, such as medical profession, where the doctors are expected to observe a high code of professional conduct. The remedies that are available for negligence are refund of the fees paid, compensation for the lost property, and compensations.
There are several mistakes that are concerned the commercial law such as the unilateral mistakes, mutual mistake, and collateral mistake among others. Mutual mistake occurs from the misrepresentation of the material fact in relation to a subject matter in discussion whereas the collateral mistake does not afford the right of rescission. The remedies that are available for both mistakes are rescission where the contract is fully cancelled or reformation where a written agreement is changed to reflect the interest of both parties.
In the context of commercial law, duress has been defined as a threat of harm made to compel a person act against his will whereas undue influence is the act of taking advantage of the other person due to your position in power. On the other hand, unconditionally is the act providing inconvenience to others by disobeying the law (Sealy & Hooley, 2008).
The Nature of Commercial and Non Commercial Contracts Order Instructions: the concept of intention to be bound in the nature of commercial and non commercial contracts Please divide the work into 2 sections.
The Nature of Commercial and Non Commercial Contracts
the 2nd section would be how the courts view agreements and tests used to determine the intention
The Nature of Commercial and Non Commercial Contracts Sample Answer
Discuss the concept of intention to be bound in the nature of commercial and non commercial contracts, having regard to the necessity of writing, how the courts view agreements and the tests used to determine intention.
Introduction
A valid contract must have an agreement that was made with intentions of making it legally binding among the parties to the contract (Beatson, 2010). The parties must intend to have legal relations between themselves Pettit v Pettit (1970) AC 777 and Hardwick v Johnson [1978] 1 WLR 683.
Consideration plays a critical role as it provides the intention and evidence that the promisor actually specified agreed to exchange his goods with something else in the form of a price or anything of value (McKendrick, 2012). The items exchanged carries or acts as evidence that the parties truly intended to be bound by their agreement and the consideration is the proof or test of their commitment to the contract (Poole, 2012). Once each party has performed his part of the contract then the contract is said to be executed (Beale, 2007: McKendrick, 2011).
When assessing the contract cases, the courts used to apply particular presumptions to different contracts and mostly all domestic and social contracts were literally presumed not have intention to create legal relations while all commercial contracts were all presumed to have legal intentions however currently all the intentions must be proved in a court a law (Brownsword, 2010). The case of Balfour v Balfour provides the basis for determining intentions in a contract. However, commercial contracts that are entered into without any intentions of creating legal relations mostly have clauses that include such words as Honour clauses and which indicate that the relationship is not legally binding as indicated in the case of Wilson v Burnett [2007] EWCA 1170.
The other test that can be applied is the reasonable man’s tests where a reasonable man would decide given the nature of the contract and transactions at hand like in the cases of Jones v Padavattan (1969) 1 WLR 328 and Merritt v Merritt (1970) 2 ALL ER 760.
References
Beatson, J., A. (2010) Burrows and J. Cartwright Anson’s law of contract, Oxford: Oxford
University Press, [ISBN 9780199282470].
Beale, H.G., W.D. (2007) Bishop and M.P. Furmston Contract – cases and materials,
London: Butterworths, [ISBN 0199287368].
Brownsword, R. (2010) Smith & Thomas: A casebook on contract, London: Sweet &
Minor Mental Competent in Escape of Contract Liability Order Instructions: circumstances in which a minor mental incompetent or drunk person may escape liability for a contract
Minor Mental Competent in Escape of Contract Liability
Minor Mental Competent in Escape of Contract Liability Sample Answer
Explain the circumstances in which a minor mental in competent or drunk person may escape liability for a contract. Also explain the circumstances in which they or their guardian may be bound or become bound by the contract
Introduction
The parties to a binding promise that’s meant to give rise to legal obligations must have contractual capacity. All persons are regarded by law to have contractual capacity unless the law states that such persons lack contractual capacity. Minors, incompetent persons such as persons of unsound minds and intoxicated persons have limited contractual ability as relates to the case of R Leslie v Sheill [1914] 3 KB 607.
Besides the contracts for necessaries and other binding contracts unless they have been repudiated the rest of contracts that have been signed by minors under common law are void. Section 2 of the Infant Relief Act (1874) in the UK makes all the loan contracts, debts and contracts for the supply of goods that are not necessaries to be absolutely void and cannot be ratified.
Minors may escape liability when they contract for necessaries which are reasonable like for instance food, shelter, medicine and reasonable clothing items as per the Minors Contracts Act (1987) UK.
Luxurious items are not considered as necessaries as in the case of Ryder v Wombell (1868) LR 4 Exch, 32. Mental or drunk persons may escape liability if at the time of contracting they were not in their right minds or they were not lucid Chapple v Cooper (1844) 153 ER 105.
When a minor deviates from the terms of a contract like for instance misusing a rental car or using it for unauthorized purposes hence negligently damages the car then it would be involve the guardian on charges of tortuous liability as in the case of Burnard v Haggis (1863) 143 ER 360 and Jennings v Rundall (1799) 101 ER 1419.
The guardians of minors and persons of unsound minds maybe bound if the contracts are not for the supply of necessaries like food, clothing or other basic needs Nash v Inman (1908) 2 KB 1.
Minor Mental Competent in Escape of Contract Liability References
Assignment 1 Case study: Good Grocers, Inc.
Due Week 6 and worth 150 points
Note: The company mentioned herein is merely a hypothetical organization with characteristics developed to enable students to respond to the assignment. You may create and / or make all necessary assumptions needed for the completion of this assignment.
After Good Grocers, Inc. expanded its organic produce section and adopted a “buy local” policy, sales increased. The Virginia-based chain expanded its retail locations from seven to twelve (7 to 12) over the last three (3) years.
As the Assistant Human Resources Manager, your job is to advise store managers about legal and personnel matters. The leadership at Good Grocers, Inc. considers you to be a legally astute manager, who consults with the corporation’s attorney, as necessary. The corporation’s leadership has tasked you with managing two (2) situations have come across your desk. Please respond with support that is backed by the law.
Write a three to four (3-4) page paper which addresses the two (2) situations from two (2) store managers.
Situation 1
Last week, my produce manager reported the following incident:
As I came out from the bakery, I saw a woman lying on the floor of the produce department. Her husband started yelling at me, saying, “She slipped on a banana peel and fell. My wife is the anchorwoman for NEWSNOW, and we are going to sue you!”
She didn’t look hurt, but I called 911 and filed an incident report that contained the facts of the situation. When viewing the area, I did, in fact, see a banana peel on the floor, but it was still yellow and lying on top of a ribbed rubber mat. The woman in question was wearing five-inch high heels. But I wasn’t sure what to say, other than the woman would be hearing from us.
1. Explain whether this situation is best handled by litigation or by a particular form of alternative dispute resolution.
2. Based on how you would handle this situation, either through litigation or a particular form of alternative dispute resolution, outline the key next steps involved in seeking a resolution. Justify your response.
Situation 2
Last week, my bakery manager was short an employee over Mother’s Day weekend when the bakery is always busy. To make up for being shorthanded, the bakery manager called in Ms. Greene, an independent contractor. Generally, Ms. Greene comes in on Monday, Wednesday, and Friday nights between 6 to 9 p.m. just to decorate cakes; she has her own bakery business. We furnish all of her equipment, and we pay her by the cake.
Ms. Greene worked eight (8) hours on Saturday and another eight (8) hours on Sunday over Mother’s Day weekend. We paid her $15.00 per hour. On the following Monday when Ms. Greene came in, she told me that she wanted to receive the same benefits as the other Good Grocers part-time employees, such as paid time off and employee discounts. Ms. Greene asserted that she really is a part-time employee who deserves the usual employee benefits.
3. Determine whether Ms. Greene is an independent contractor or a part-time employee. Provide a rationale for your response.
4. Explain the reasoning supporting whether or not Ms. Greene should receive the same benefits as part-time employees.
Suggested resources for this assignment:
1. Access your Learning Resource Center (LRC) at the top of your iCampus screen. Search by keyword for business articles on arbitration, mediation, or independent contractors. You may also use your LRC to access legal topics and articles through the Lexis Nexis database.
2. At FindLaw, located at http://www.findlaw.com/, you may search by legal topic or enter a keyword(s) into a search box to find relevant information and articles.
3. You may use the following additional resources:
• Use at least two (2) quality academic resources in this assignment, such as a government Website, and include internal citations. Note: Wikipedia and other Websites do not qualify as academic resources.
• Be typed, double spaced, using Times New Roman font (size 12), with one-inch margins on all sides; citations and references must follow APA or school-specific format. Check with your professor for any additional instructions.
• Include a cover page containing the title of the assignment, the student’s name, the professor’s name, the course title, and the date. The cover page and the reference page are not included in the required assignment page length.
The specific course learning outcomes associated with this assignment are:
• Describe the legal environment of business, the sources of American law, and the basis of authority for government to regulate business.
• Explain basic court procedures, types of courts, and alternative dispute resolution methods.
• Use technology and information resources to research issues in business law.
• Write clearly and concisely about business law using proper writing mechanics.
SAMPLE ANSWER
Introduction
There are several methods in which legal responsibility in tort may arise;
Legal responsibility may be forced as a legal consequence of a person’s deed, or of his omission if he is under a lawful obligation to act. Legal responsibility may also be forced upon one person as a legal consequence of the action or inadvertence of another individual with whom he stands in any distinct association, such as that of a servant and his master (vicarious liability).
In selected cases, legal responsibility is founded upon a mistake, sometimes intention to cause harm, is required but more often laxity or negligence is sufficient. In circumstances of strict liability, however legal responsibility is in capricious degrees independent of the liability.
Most torts necessitate damage or loss resulting to the plaintiff as a consequence of the perpetrator’s demeanor. However, in some circumstances as trespass to land and to persons, the burden of proof of actual damage is not essential.
Intention or negligence or the breach of statutory
Intention
Some wrongdoing requires intention on the part of the wrongdoer. Intention can be inferred from the conduct of the wrongdoer. Whatever a man thinks must be deduced from what he says and does. A person intents a consequence if it is his/her motives to bring it about.
Negligence
‘Negligence’ may signify full advertence to one’s conduct and its consequences. More usually, however, it means inadvertence by the defendant, but the defendant cannot escape liability because he adverted to the risk if the case is one where even inadvertence would saddle him with liability. An illustration of full advertence is the case of Vaughan – v – (Menlove 1937) 3 Bing N.C. 468
(This case was followed in Ward v Jesco Stores, (1976). AllE.R.219, where the Court of Appeal held that an accident which occurred due to spillage of yoghurt on a shop floor, put an evidential burden on the defendant store owner to prove that the accident did not take place through any lapse of care on their part. They were not able to satisfy that burden, and the plaintiff succeeded.)
The appropriate procedure to resolve the conflict.
Considering the circumstances of the case the company is facing I believe the best option for resolving the issue is through negotiation. In my opinion since we actually have no clear evidence of what really transpired in that juncture. It is the woman’s word against our production manager’s word. On solving conflicts the method to apply in resolving, the dispute usually will depend upon the nature of your particular argument and personal needs of the participants. In our case, we have to put consideration on the following issues as that is necessary (Goldberg, Frank & Rogers, 1992).
Firstly, we have to figure it out whether the case should be a Private and confidential or in a public court setting. Secondly, we should consider the Informal settings, which are considerably flexible processes or those that are formal and have specific rules to follow. Thirdly is whether we have Personal control or decision made by a judge or arbitrator. Fourthly is the Time factor. Fifthly, the Cost considerations.
The sixth, is whether we desire to uphold the mutual affiliations, bearing in mind the people involved in the discontent circumstances are our customers. Seventh, is whether the Disagreement ought to be judged on questions or matter of law. In that, be it resolved with business law principles or an alternate way out brought into being by other mechanisms that are fair, yet practical. Lastly, if the decision to be made finally will be binding, and readily enforceable Negotiation is a straight forward way of solving discontentments. It is a two-way communication channel among conflicting individuals in the disagreement bearing an objective of finding a solution (Goldberg, Frank & Rogers, 1992).
Negotiation with the client may be done directly, or we can use the company’s lawyer to handle negotiations directly with the client and her husband on the business’s behalf. Usually, there are no precise procedures to follow, but negotiation is fritful when all persons concerned come to a concesus to stay calm and talk one person at a time. In this circumstance, it is better to negotiate in the board room company or the office (Goldberg, Frank & Rogers, 1992).
The goodness of negotiation is that it permits us to take part directly in decisions that affect us. In successful negotiations, the needs of both parties usually taken into consideration. A favorable negotiated agreement can be used as a contract and is enforceable in the law.
Negotiation is the principal methods of choice for problem-solving and trying to influence an equally satisfactory settlement (Goldberg, Frank & Rogers, 1992). If no pact is reached, litigation may suffice. The negotiation process is versatile and may be employed at any point in tying to resolve the conflict. E.g In advance of a court case being filed, even when the court process is on going, or at the end of that trial, even at the point before or after filling an appeal (Goldberg, Frank & Rogers, 1992).
Characteristics of Negotiation:
Negotiations are usually Voluntary
They tend to be Confidential and Private
Negotiations are relatively inexpensive and may be Quick as compared to litigation.
Negotiations are mostly Informal and thus unstructured to a fault.
High chances of resulting in a win-win solution
Key steps involved in seeking a resolution. Justify your response.
The initial step, which is paramount to the resolution of the problem, is to find out whether one has the Command or capacity to talk and influence an agreement. In this step, one party must reach out to the other to find out if one is willing to settle. Also, it is prudent to know the Credibility of other parties concerned and the Ability to negotiate on equal terms. Also, it is at this step to point out the underlying alternatives to negotiation if negotiation fails (Thibaut & Walker, 1978).
The next step is to Contact the other person involved to confirm about the Programme, Place (Neutral), and Contributing parties to the conflict resolution process (Thibaut & Walker, 1978).
The third step in the negotiation is the Ground work of a plan and interest valuation. Here one should Study the issues, resolve opposing interests inside the group, Evaluate the Best Alternate to a Negotiated Agreement and Fashion choices for common gain “win-win” (Thibaut & Walker, 1978).
Determine whether Ms Green is an independent contractor or a part-time employee
In my opinion, Ms Green does not qualify to be a part-time employee, according to equity law principles that define independent service provider position by structure of payment. If an individual is on a company’s payroll and collects stable salaries, evidently, he or she is a member of staff rather than an independent service provider, who probably receives compensation a total varying custom. In this case scenario, the Ms Green has been receiving payment on a commission, based on the number of cakes she produces (Miller, 1991)
The general principal rule is that a person is a independent service provider if his employer administer the result of the labour only. He is not involved in the ways and means in which the end result was achieved. In this case, the company has not been directly involved (Miller, 1991). Even though it furnished all the equipment’s she used in decorating the cakes the company did not control her schedule of work and how she produced the cakes.
Independent contractors are appointed to undertake a particular job. The affiliation between the hiring party and the independent contractor is predetermined (Wright, 1991). Ms Green was contracted on a contractual basis that stipulated explicitly on what she was supposed to do. There is verbal, written, or implied contract amid the parties about what will be completed and how much that service is worth (Sumutka, 1992).
The nature of the work will assist in describing the affiliation. When work is well thought-out central to the line of work, it is more likely that the worker is permanent employee. Otherwise, work, which is temporary and non-integral may point toward independent contractor standing. Ms Green work seems not to be integral as it only required her to perform it on particular days(Sumutka, 1992).
In an effort to construe the doctrine of the Fair Labour Standards Act and differentiate amid worker and an independent service provider status, several courts and federal government agencies did construct an “economic realities test.” It examines the dependence of the employee on the employement. If an individual gets a relative higher percentage of his remuneration from that business, likelihoods is that the person is an employee. The assessment factors in such things as cader of expertise, the essential structure of the work, the motive and interest the parties have and payment of benefits and government taxes (Oden, 1991).
Also used is the “right to administor” the assessment. When the “would be” employer regulates how work is carried out and a how the merchandise is distributed, then the relationship is of a servant-master relationship. If the would be employer relinquishes his duty and right over how the employees completes their work, and merely issue demands, then that association of is that of the master and independent contractor(Oden, 1991).
The reason supporting whether or not Ms Greene should receive the same benefits as part-time employees
Ms Green should not be issued the same kind of benefits as part-time employees because she was paid in full because the nature of the job was a one-time thing and not a permanent situation that would warrant such demands. Besides, she was paid in its entirety an actual figure that was more that her normal commission when she did her daily chores. For one to be considered a part-time, employee there is a stipulated period that should lapse, and the consistency of work should be flawless (Wright, 1991).
References
Goldberg, S.G., Frank, E. A and Rogers N.H.(1992). Dispute Resolution: Negotiation, Mediation, and Other Processes, (2nd Ed.) (Boston: Little, Brown and Company.
It is a business law question. there is 3 questions, you must answer all of them.
SAMPLE ANSWER
Introduction to Business Law
Question One:
Would you consider a newspaper report which stated that Malcolm Somebody (his real name) had been charged with a sexual offence defamatory? Explain your answer.
If all the four elements that qualify a statement to be defamatory are proved to be true, I can consider the newspaper report that states that Malcolm had been charged with a sexual offense defamatory. Defamation is a term used to refer to a statement that hurts an individual’s reputation. A libel refers to a written defamation while slander refers to a spoken defamation. Although the defamation law may vary with states, there are some rules that are generally accepted. If a person holds they have been defamed, they must prove the existence of a statement that is published, false, unprivileged and injurious (Kenyon 2013). Published in this case refers to the statement having been made public either through print, speech, or even television and therefore the above statement qualifies because it was published in a newspaper.
If the above statement is false in that Malcolm was not charged with sexual offence, then it can be considered defamatory. Since defamation law aims to deal with the injuries to reputation, a statement is considered defamatory if it is injurious. As a fact, the statement of Malcolm being charged with sexual offence is injurious as it dents his reputation. The statement is also unprivileged since it has not been stated that it was mentioned by a witness in a court of law or by any other person or institution deemed to be “privileged” (Baker 2011). From the analysis of defamation law, the only element that is not clear from the above statement is whether the information is false. If it is false, the newspaper report would be defamatory, but if the information is true the report cannot be considered to be defamatory.
Question Two
Peter as the manager of the liability to ensure that the toilets have enough water supplies. Moreover he has the duty to act or liability to make sure that there is hygiene in the washrooms and in the whole nightclub. Conversely, Julia and Wayne have the right to be provided with the best services in the nightclub and this includes being provided with water in the toilet. When Peter cut off the water supplies to the toilet handbasins, he was liable for his actions because he was denying Julia and Wayne their rights as customers to have access to water in the toilets (Miller 2014). By cutting off the water, Peter was being selfish because he was more interested in boosting bar sales at the expense of the customers’ rights to be comfortable while in the Bees nightclub.
Being the owner of the nightclub, Keith has the right to maximize sales. Similarly, Peter had the right to ensure sales are maximized because they were serving customers. Conversely, Julia and Wayne did not have any right to drink the water from the toilet because water in the nightclub was being sold at the bar at the price of $10 per bottle.
Keith, as the nightclub owner, was liable for the fault in the air conditioning that made the temperature on the dance floor to reach 43o. As a result, both Julia and Wayne became overheated and therefore visited the toilets to get some water. Wayne and Julia did not have any right to be provided with free water for drinking from the toilet hand basins since the nightclub did not have such an arrangement. Julia had a right to be assisted by the floor manager because she was feeling sick.
When Julia stumbled on a bucket, Peter was liable for the injuries she sustained since he had placed the bucket near the bar after removing it from the women’s toilets. Furthermore, Keith was also liable for the Julia’s injuries caused by the fall because Peter had cut the water supply from the toilets due to the pressure he had received from Keith to maximize profits. Therefore, the thought of cutting off the water from the handbasins was driven by the urge to stop customers from drinking the water from the toilet handbasins where they were refilling their water bottles and glasses. This was also supposed to make customers buy drinking water from the bar. Eventually, this had contributed to the placing of the water bucket near the bar where Julia tripped. Julia can therefore sue Peter for negligence for placing the bucket in the wrong place, and Keith for putting pressure on Peter.
In essence, Keith is also liable for any harm caused by Peter in the course of his duty because he had employed him (Miller & Cross 2012). The fractured ankle that Julia was diagnosed in the hospital was caused by the fall in the nightclub after tripping on the bucket. Peter was therefore liable for that injury. Keith was also liable for the injury that Julia sustained from the fall because the club was so dark and crowded and therefore Julia could not see the bucket. In relation to the extreme dehydration that Julia was suffering from, Keith was responsible as the bar owner since the dehydration was as a result of the high temperatures due to the faulty air conditioning. Even though Wayne developed hepatitis that he contracted from the ice he took from the bucket, Peter and Keith cannot be held liable because it was Wayne’s mistake to take the ice from the bucket since that water was not fit for consumption. In this case, Peter and Keith could argue that they had not indicated anywhere that the water from the bucket was for drinking since they were selling drinking water.
Question Three
In tort law negligence refers to the harm caused due to carelessness as opposed to intentional harm (Statsky 2011). The real estate agent had placed an advertisement for a house that stated that the Waterview House that was on sale was a luxury home situated on the harbor and includes mooring for a large boat. When the Brights purchased the house, they were sad because they realized that the mooring license had already been transferred to a third party by the time they were speaking to the solicitor and the agent. First, they can file a claim against the agent because he had given them a confirmation that the house had a suitable mooring. Indeed, the agent demonstrated carelessness because he had the responsiblity to find out whether moorland had a valid license. Moreover, the Brights can also make a claim against their solicitor, Mr Potters, because he confirmed to them that the mooring had a valid license. Therefore, the solicitor was careless because he did not find out about whether mooring license was valid or not. Negligence by the solicitor contributed in misleading the Brights into buying the house because they were convinced that the license was valid.
The fact that the agent informed the Brights that the house had a suitable mooring for a large yacht, it clearly shows that the agent was careless in giving his statement. If he was not more careful and cautious he would have checked then validity of the mooring license. Actually, both the agent and the solicitor were affected by the negligence law because they failed to assess the rules of the mooring license (Statsky 2011). If they did this, they would have found out that the license rights expire and could be transferred if the mooring was not used for a period of more than three months. By the time that Brights spoke to the solicitor and the agent, the mooring had not been used for four months. This implies that the license rights for the Mooring had already expired and therefore the mooring license had already been transferred to a third party.
Brights can lay claim against the solicitors because he failed to exercise the duty of care because he was supposed to advise his client on whether the Mooring license was valid. As a person who understands law, the solicitor should have been at the forefront in verifying the rules related to the expiry of the license. This would have made him to know that the license was already transferred to a third party due to the fact that it had not been used for more than three months. The negligence for both the solicitor and the agent may have been caused by the lack of knowledge that the current owner of the mooring was sailing around the world and therefore had not used the mooring for a period exceeding three months as stated in the rules governing the mooring license. As such, the Brights only purchased the house after the confirmation that he received from both the solicitor and the agent and therefore have claims against both of them on the basis of negligence law.
Reference List
Baker, R 2011, Defamation Law and Social Attitudes: Ordinary Unreasonable People, Edward Elgar Publishing, Michigan.
Kenyon, A 2013, Defamation: Comparative Law and Practice, CRC Press, New York.
Miller, R 2014, Cengage Advantage Books: Business Law: Texts and Cases-Commercial Law for Accountants, Cengage Learning, New York.
Miller, R. & Cross, F 2012, Business Law, Alternate Edition: Text and Summarized Cases, Cengage Learning, New York.
Statsky, W 2011, Essentials of Torts, Cengage Learning, New Jersey.
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Review the criteria in your text for determining an implied contract (pages 630–631). Choose three of the criteria and identify a specific case or example that would prove to be contractually binding. In Chapter 18, you read about implied contracts. For this assignment, write a 1–2 page paper that describes the concept of implied contracts. Identify a specific case or example that would prove to be contractually binding and provide your rationale regarding why this is the case. Cite and reference information from your sources according to APA guidelines.
SEE ATTACHED FILES FOR MORE INFORMATION.
SAMPLE ANSWER
An implied contract is a legally enforceable agreement that is not in writing. It is created on the basis of the conduct, behavior and assumed relationship of the parties involved. A contract is usually implied when a party accepts benefits in kind from another party because of particular circumstances and the benefit cannot be considered to be a gift. It is therefore the legal obligation of the individual who is receiving the benefit to give a fair value to the benefit that is received (Smitley, 2011).
Criteria for determining an implied contract
There exist various criteria that are used in the legal enforcement of implied contracts. These criteria include basic circumstances such as their being a specific promise that was made in between the parties. The promise also needs to have been given by someone with sufficient authority to enforce and offer that promise. The employer’s behavior and conduct at the time of giving the promise needs to be consistent with policies, industry practices and must be consistent with the promises (Smitley, 2011).
Case study
Mr. Baker had been employed by the common wealth bank for a period of 27 years with his last position at the bank being the senior position of Executive Manager in the Bank’s corporate banking section. A restructuring of the bank unfortunately made his position redundant and even without notice he was given a letter asking him to vacate his desk on the same day. However, because he was a model employee at the bank and had served for several years, the bank made it clear to Mr. Baker that it had preferred to redeploy him to another alternative role of the bank and was even nominated a career support manager and documents to inform him about the new banks redeployment services. He was also directed to hand over his company mobile phone and access to his company email was terminated.
The bank true to its word conducted the redeployment policy but the career support manager who was designated to Mr. Baker was unaware that Mr. Baker could not access the banks communication systems therefore resulting in his fate of not being aware of the activities and the bank was unable to contact him for an extended period of time. The bank therefore failed to adhere to the procedures within the Redeployment Policy. Mr. Baker sued the bank for damages for breach of contract.
Rationale as to why the promise was legally binding
The terms of the mutual contract implied that the mutual trust and confidence that was bestowed between the parties involved did not merely apply to the point of employee dismissal. Therefore, since Mr. Baker was not made redundant, the implied term did not interfere with the right of the bank to provide notice. To apply the term mutual contract to the manner of dismissal was therefore unnecessary and inconsistent with acts of law that deal with unfair dismissal. Therefore, in light of this case study, the breach of the implied agreement occurred independently and before the eventual termination of employment. Therefore, the court ordered that compensation be paid and damages be awarded to Mr. Baker on the basis of an employee’s loss for a chance in redeployment that resulted into the breach
This assignment requires you to read “Moral Criticisms of the Market” by Ken S. Ewert Note that in his article, Ewert is defending the free market from “Christian Socialists.” He states their position and then gives a rebuttal. Do you agree with the critique of the market in Ewert’s article? Why or why not? Read carefully and offer cogent reasons.
Consider the context of the article; the Berlin Wall fell months after the article was published. The USSR followed shortly thereafter.
SAMPLE ANSWER
The Free Market System
In his article Moral Criticisms of the Market, Ewert (1989) looks at the condemnation of the free market by Christians as morally wanting and criticizes it. I agree with this article on various points.
First, he accepts that most systems accommodate selfishness. It is for this reason that both a socialist and a capitalist will both take a bribe. However, the free market system does not encourage selfishness. Instead, the free market system promotes competition. Competition on the other hand, competition has been shown to promote productivity. It is of course the intention of every system to encourage productivity.
Second, the free market encourages free choice. This way, it does not encourage individuals to market their products selfishly but rather gives them a chance to act as they please. The socialist approach on the other hand gives the will to a central system. This system is to blame for the Berlin wall. The Berlin Wall was intended to divide the socialists in Germany from their capitalist counterparts (Taylor, 2007). It took away the concept of free will from individuals forcefully. This implies that capitalist systems are more likely to promote free will and peaceful co-existence than socialist ones.
Thirdly, the socialist systems are intended to benefit one party while neglecting others. The alternative to the free market is the state-led systems. These systems often permit for the creation of channels that promote the oppression of certain individuals rather than others. This implies that they are more likely to be oppressive compared to capitalist systems.
Finally, the free market does not give any reasonable economic power to the wealthy. The economic power it confers to the wealthy is the ability to negotiate. Since they have money, they are able to offer better terms to those from whom they are buying from. It does not however promote cases of slavery and oppression.
Constitutional impediments and Commonwealth-State rivalry prevent Australia having effective national, corporate regulation
Is this statement an accurate description of the situation in Australia today? Discuss, in the light of recent reforms to the regulatory scheme and problems which may arise in the future.
Guidelines
The word limit is 2400 words. If the assignment exceeds the word limit by 100 words or less, there will be no penalty. If the assignment exceeds the word limit by more than 100 words, there will be a penalty of half a mark deducted for each extra 50 words or part thereof. Footnotes will not comprise part of the word count nor will a bibliography. If the assignment word count is well below 2400 words (2100 words or less) there will be penalty.
NB: Late assignments will be penalised as follows:
• Up to 3 days late 5% of the maximum possible mark awarded for the assignment
• From 4–7 days late 10% of the maximum possible mark awarded for the assignment
• From 8–14 days late 25% of the maximum possible mark awarded for the assignment
• More than 14 days late Not marked
Refer to the Rules concerning all assignments for the circumstances when these penalties may be waived. Remember that the extension to the submission deadline is exception rather than the rule and it can be granted only in exceptional circumstances.
The assignment may cover all unit objectives, though content will vary with the topic selected. In addition to matters developed in more detail below the marker will examine whether you have:
1. identified and clearly stated the relevant issues;
2. applied relevant legal principles to the resolution of these issues;
3. critically analysed deficiencies in the law and recommended appropriate changes to the law;
4. integrated and evaluated relevant knowledge from both the material covered in this unit and your own independent research;
5. developed and sustained a concise and convincing legal argument through to a logical conclusion;
6. correctly referenced and acknowledged sources;
7. fluent, clear, concise writing, not containing poor expression, grammar or spelling; and
8. answered the specific question asked.
It is most important that your assignment address the issues raised in your chosen topic. Think about the topic and make sure you understand what the topic is about before you proceed.
Marks cannot be awarded for irrelevant material, no matter how good that material is. The assignment should contain:
1. An introduction, clearly setting out the broad direction of the assignment, its objectives, any parameters of the assignment, and perhaps a summary of the arguments;
2. Presentation of argument, review of literature and compilation of evidence relevant to the topic;
3. Conclusion, clearly summarising the arguments or findings;
4. a reference list, setting out all the books, articles and other sources you have referred to in the course of writing the assignment. You need not have necessarily read each reference from start to finish, but you should have at least looked up each reference;
5. Accurate citation of your sources of information. Your written material must be presented in accordance with the most recent Australian Guide to Legal Citation (AGLC) adopted by this School (you can download a copy of the AGLC from ).
Students should note the following:
• Many people are not familiar with the requirements of assignments. Basically they are like any other piece of good writing. They must have a beginning, a middle and an end. They must be organised so that one point leads to another in a logical sequence. Headings and subheadings are usually of assistance to the reader, who should be easily able to ascertain the logic of your arguments. You should look at the articles you read in the course of your research as a model for style and organisation.
• Statements of fact must be supported by referencing in the proper form. Also arguments and ideas you are adopting or disagree with must be properly referenced. This is one of the most important aspects of your assignment, and severe penalties will be imposed if you do not reference. Be aware of the University’s and Law School’s rules on plagiarism. You should avoid over-reliance on only a small number of sources. You are expected to have read widely on the chosen topic.
• You are expected to employ your critical and analytical skills in this assignment. Avoid mere description or regurgitation and do not quote excessively. Generally speaking, no more than 10% of the assignment should be direct quotes or substantive copying of other people’s work. Both your observations and your use of other people’s writing should reflect this critical/analytical dimension. In sum, your intellectual input should be clearly discernible in the assignment.
• You are not marked for your political or social views or opinions, but rather for your ability to present coherent, rational and logical arguments, properly supported by authority.
• You are also marked for your ability to express yourself clearly, logically and succinctly. Poor expression, grammar and spelling will detract from your overall mark.
•Many students do not also realise that the more drafts of the assignment that are written, the better standard the final product will normally be. You should aim to find the time to complete at least two, if not three, drafts prior to handing the assignment in. This will be especially important in ensuring that the word limit is not exceeded.
Marking criteria
Important information: You are advised to consider the following information carefully before starting your assignment.
The assignment will be marked according to the following criteria.
Research (40%) You are expected to demonstrate a comprehensive review of the primary law sources (legislation, case law) as well as an adequate review of secondary sources (for example textbooks, journal articles, case commentary, explanatory memorandum, Law Reform Commission reports). Your research should be used to identify and clearly state the relevant issues and legal principles and support your analysis.
Analysis (50%) You are expected to analyse the information gathered and evaluate the relevant legal principles. You are expected to develop your argument logically through clear analysis and apply relevant legal principles to the resolution of issue(s).
Your analysis should also:
• integrate and evaluate relevant knowledge from the material covered in this unit;
• develop and sustain a concise and convincing legal argument through to a logical conclusion; and
• importantly, answer the specific question asked.
Technical aspects (10%) You are expected to:
• correctly reference and acknowledge sources;
• use fluent, clear, concise writing that contains clear expression, correct grammar, syntax, sentence structure and spelling; and
• Use headings and subheadings (where appropriate), an introduction, conclusion and bibliography or reference section.
Submission of assignments
All students are required to upload an electronic copy of their assignments via Turnitin. DO NOT send a hard copy of your assignment.
Assignments must be uploaded on or before the due date.
Your assignments must be submitted as either Word documents (.doc or .docx) or as text documents (.rtf). Please do not submit PDF files. Please discuss any other file format with your lecturer well before the due date.
You can start by discussing history. I would say it is advisable since the constitutional issues are highlighted by earlier cases. You may also discuss Commonwealth-State rivalry in other areas of law as Tax law but briefly just to make a point or compare with Corporate law related issues
SAMPLE ANSWER
Company Law
Introduction
The commonwealth (Federation) and the States have been engaged in rivalry since the inception f the Australian federation in 1901, which has only got more heated over the past years given that the High Court has continued to award more power to the commonwealth at the expense of the States. The commonwealth has continually used the powers of the Australian High Court in judicial interpretation of the constitution to exercise their constitutional power over the policies of the States. A clear example of such a case was in 1942 when the High Court upheld the decision by the commonwealth to levy taxes through the First Uniform Tax case so that it could finance the war effort become the sole collector of taxes across the whole federation (OBPR, 2008). The High Court cited section 51 (ii) within the constitution that gave powers to the commonwealth to levy taxes (OBPR, 2008). The key issue of contention is that in cases where there is a conflict between the commonwealth and state regulations, the relevant commonwealth laws are considered supreme in such situations. The rivalries between the commonwealth and the states and the impactof the constitution have created an untenable situation in Australia that impedes effective national and corporate regulation. This was true in the past and is still true today although significant steps have been taken to create reform and change within the regulatory system so as to improve the situation. This paper shall focus on the recent reform agenda pioneered by the Council of Australian Governments (CAOG) and its effect on Australia and its corporate regulatory environment.
Fiscal Imbalances between States and the Commonwealth
A common source of rivalry between the Commonwealth and the States in recent years has been regarding how the federal government gives funding to the States through awarding them various grants. Given that the federal government is the sole tax collector in the country, it has to find a way of redistributing the taxes collected back to the States so that they can provide essential services to their people (OECD, 2009). The federal government is required to fund various basic services such as the provision of services to the elderly including their health care, and at the same time, it is supposed to provide basic health services to the rest of the population, but the States governments are required to provide hospital services. This scenario indicates that the responsibilities of the federal government and the State government overlap and the two bodies have been known to commonly use this overlap to blame the other party for any deficiencies in the provision of health services. As this blame game rages on because of the rivalry between the Commonwealth and the States, ordinary Australian continue to suffer due to lack of some basic health services as they are being told that it is the fault of either the State or the federal government (OBPR, 2008). Similar blame game scenarios exist in the provision of other basic services, which lowers the service delivery aspect of both governments.
Harmonization of legal and regulatory requirements
The commonwealth and the State governments also have a lot of rivalry that arises out of the harmonization of the legal and regulatory requirements for businesses in the country that have acted as a significant barrier to the growth of the country’s economy. Research indicates that through harmonization, the country can generate significant GDP growth, growth in real incomes and create more jobs, which will reduce unemployment and raise the living standards of many Australians. The rivalry has acted as a significant barrier to harmonization with both governments wanting to be the superior partner in such partnerships and to get the best of the benefits that accrue from such partnerships instead of thinking about the benefits to ordinary Australians (OBPR, 2008). It has seen Australia continue to offer significant obstacles in terms of regulatory requirements when creating companies and when paying for licenses with many corporations being charged for licenses both at the State and the national level. Without the rivalry one can only imagine how far Australia would actually go in terms of being one of the most friendly nations to investors and businesses in the region and maybe even across the globe. Over time efforts to establish national trade authorities and organizations that mange trade on a national level through harmonization have been met with a lot of resistance by the State governments. This rivalry has resulted in the lack of implementation of most of the harmonization programs in Australia.
National partnership payments
The delivery of services in the states has been affected for a long time by federal-state relationship in the sense that whatever the state governments did was tied to the policies of federal agencies. The NPP programs through which the federal government funded most of the projects of the states was skewed in the favor of the federal government, which had excess control over what the states did with the funding as it usually had attached conditions. The states were extremely limited in the scope of independent choices they could make in terms of how they would spend the money they received from the federal government. However, in order for states to have autonomy in their affairs as envisioned in the constitution, the role of the federal government in deciding the policies of states should be non-existent or minimal at best (‘BEPS and recent developments in Australian corporate tax law,’ 2013). Efforts to create a more independent relationship between the federal governments and the states have faced challenges because of the existing rivalry with most of the proposed changes still not being implemented. A different funding program should be implemented in order to give states more power over the policies they implement by removing the attached conditions that were a part of federal funding. Such a strategy would ensure that states have more control over the delivery of services within their jurisdictions, which will increase innovation within the states and boost competition between states that will benefit all Australians.
Rivalries between heads of governments
Initially the Commonwealth was almost entirely responsible for meeting of heads of governments that discussed the reform agenda in Australia, which gave little room for the states to set their own agenda and fully express their needs and policies in relation to the federal government policies. The heads of agencies in the federal government would arrive at such meetings with their requirements for the state governments clearly outlined with little room for debate, which fueled the rivalry further. However, the COAG has strived to reverse this trend and create a new culture for such meeting between heads of governments by directly involving the heads of governments from the states, the territories and the commonwealth in the planning of such meetings (COAG, 2008). Other avenues for dialogue have also been created in terms of working groups and ministerial councils, which meet much more frequently than in the past where COAG meetings were only convened on an annual basis and were extremely brief (OECD, 2009). These frequent collaborative meetings have served to increase the cooperation between the state and federal governments, which has significantly increased the pace of reforms within the country. The establishment of a Center for the Australian Federation by the states in 2006 is a clear indicator of the increased role of the states in the reform agenda currently being implemented in Australia.
The Impact of Ministerial Councils
During the implementation of recent reform agendas, the role of the ministerial councils has taken center stage given that they are a direct way of ending state and commonwealth rivalry as they are usually made up of ministers from states, the territories and the commonwealth (OBPR, 2008). The impact of ministerial councils cannot be understated as they usually result in the adoption of specific policies by the states that quickly translate into legislations and finally into regulatory practices in the states and territories. The ministerial act as avenues for resolving any issues that arise between governments and the COAG has identified them as a crucial component of the efforts to implement the reform agenda within the states because of the authority of the members of such councils as representatives of their governments. Initially the ministerial councils were too many with some having overlapping roles and there was ineffective communication between the numerous ministerial councils which directly impeded the coordination of their activities and their effectiveness. However, the CAOG embarked on a project of streamlining the effectiveness of the ministerial councils and creating better integration firstly by reducing their number and redefining their scope and providing clear guidelines for their formation (COAG, 2008b). The ministerial councils have been vital in redefining the role of the states in creating their own policies, which has positively impacted the relationship between the states and the commonwealth by increasing the autonomy of the states (OECD, 2009).
Improved mechanisms for regulatory management
A crucial component of the rivalry between state and federal governments is the rising costs of compliance across various jurisdictions in Australia because of non-uniform regulatory schemes that lead to double taxation on businesses, thus hindering business competition. Although the federal government is the sole tax collector, businesses are taxed and regulated under the individual constitutions of each state or territory, which greatly increases their compliance costs across jurisdictions (OECD, 2009). In order to improve the regulatory management mechanisms, the CAOG got the three levels of government to agree to several guidelines that would govern the regulatory environment (COAG, 2008b). The agreement included the establishment of gate keeping or controls as a crucial component of the decision making process, use cost-benefit analysis as a method of improving the quality of decisions made by analyzing the impact of such decisions. The agreement also involved the establishment of better analysis of the cost of compliance resulting from new regulations on individuals, businesses and the community, while at the same time increasing the scope of the impact analysis performed for new regulations (‘BEPS and recent developments in Australian corporate tax law,’ 2013). These mechanisms are supposed to apply to all three levels of government and the ministerial councils as they create regulations within the recommended regulatory framework in order to eliminate all forms of rivalry between states, territories and the federal government.
Applying best practice principles in regulation
In order to create and implement equal regulatory requirements the three levels of governments agreed to abide by some principles that would ensure the equality of regulations across Australia based on principles of equality and fairness. Some of the guiding principles under this agreement brokered by the CAOG include establishing a credible case for action before attempting to create legislation to solve a particular problem, considering several feasible options before making a decision on the best option to adopt for the problem, and adopting only those options that have the greatest overall positive impact on the society (COAG, 2008). The three levels of government also agreed not to restrict competition unless it could be proven that the benefits of such a move on the community would be greater than the costs and that this was the only way such benefits could be attained. The governments should also guide those affected by certain regulations on how best to comply with the regulations so that the expected policy outcomes might be achieved, while at the same time the governments should keep regulations up to date and relevant over time. In case there are issues that are raised by several jurisdictions after a particular regulation is being considered for implementation, the ministerial councils should halt its processes and commission a review of the decision making process (OECD, 2009). If the review team finds faults with the process, the council has the option of using the findings and recommendations when making their final decision, but if they ignore the recommendations, the heads of government may take up the issue.
Working Arrangements that Facilitate National Reform
As coordination between the commonwealth and states increased significantly after the December 2007 elections the COAG created a set of guidelines that would guide the creating of appropriate working conditions for the Australian workforce under the renewed cooperation between the two governments. Some key areas of focus included health and ageing, business regulation and competition, and productivity agenda including training and education. Working groups were constituted by the CAOG to create proposals for the implementation of these strategies, which were headed by a minister of the commonwealth with their output being in form of proposals, and delivery objectives (COAG, 2008). Heads of treasuries complemented the working group as an independent unit chaired by the Commonwealth Head of Treasury where they worked out formulas for implementing the proposed financial plans (OECD, 2009). The major strengths of the working groups include the fact that they have a clear agenda, they have high ranking political leaders, they have adequate funding and well established secretariats, and are composed of high level commonwealth and state officials with relevant experience in setting policies. However, states have raised issues with the significant role played by the commonwealth as the leader, but they also appreciate that the commonwealth is leading the reform agenda.
Conclusion
In conclusion, the analysis of the issues at the core of the rivalry between the commonwealth and state governments and the reform agenda implemented by the CAOG indicate that the reform agenda has tries to resolve most of the issues that impede the establishment of a national corporate regulatory environment. I would like to point out that if the reform agenda is implemented fully by successful governments, they can prevent any future rivalries by preempting them and establishing structure to quickly resolve such rivalries in the future. I would also like to issue a cautionary word to the corporations that are relying on the reform agenda to rollout programs or expand operations across the country or even internationally that the pace of reforms is unpredictable. Reforms may be fast tracked by one government only for them to drastically slow down during successive administrations, which means that all corporations should plan for such eventualities in future. The rivalries between the three levels of government are not new to Australia, what would be new is if the current generation of leaders was able to completely resolve the rivalries and constitutional impediments to create a favorable corporate regulatory environment. The reform agenda discussed here holds the key to the desired corporate regulatory future, but Australian leaders must be willing to implement it fully to reap the maximum benefits for their efforts.
Reference List
‘BEPS and recent developments in Australian corporate tax law,’ 2013, International Tax Review, 24, 10, p. 15, Business Source Complete, EBSCOhost, viewed 21 August 2014.
