Commercial Law

Issue-

  • Can Carl be protected under contract law?
  • Can Carl be protected under Consumer Law?

Rule-

  • Common law
  • Misrepresentation act, 1972
  • Competition and Consumer Act 2010
  • Precedents

Application-

For our first issue, Carl can claim damages under section 4 of the Misrepresentation Act, 1972 says that if any person, during any trade or business, made any misrepresentation or was acting on behalf of any person during his course of employment, induces any person to enter into a contract or induces any person to make any partial payment for the contract, then his maximum penalty shall be, if a body corporate, $100,000 and another case $20,000. Hence under section 7 of the same act, Carl can ask for damages for the loss that he suffered. Further, the section states that it depends on facts and circumstances that whether the plaintiff is entitled to damages or rescission of the contract or to be indemnified. In Long v Llyod [(1958) 1 WLR 753] held that where the plaintiff had accepted the goods sold by the defendant and also paid for the repairs to make it more efficient as promised by the defendant and if it gets damaged in the process, then the plaintiff cannot claim for rescission of the contract and is not liable to be paid for any such loss. In Whittington v Seale-Hayne [(1900) 82 LT 49], it was held that where the water of the property given by the seller to the plaintiff was poisoned, so the plaintiff is liable only for the damages that happened to him and his stock. In Bullabidgee Pty Ltd v McCleary[(2010) NSWSC145], it was held that the seller gave misinformation on the dimensions of the property being of 7000 acres when in reality it was 5325 acres. However, the buyer is not entitled to damages since he did not act on the information given.

Schedule 2 Chapter 2 of the Competition and Consumer Act 2010, talks about the Australian Consumer Law. There Part 2-3 talks about the unfair contract terms. Section 23 of the Part 2-3 says that a consumer contract void if the terms of the contract are unfair. Section 24 defines unfair. The term means if any clause or language of the contract causes imbalance among the rights of the parties; or if the party stating the contract gets any illegitimate advantage from that, or it would cause some loss or damage to the party if the contract is abided. However, this all depends upon the objectivity of case. The court may interpret the whole contract and then conclude whether it is unfair or not. Section 25 gives the list of the unfair terms like if any contract limits the other party rights; or if the contract gives the autonomy to another party to terminate the contract, etc. A very current case on unfair contract terms, called The Potato Case,2019 (Sise, 2019) where the Australian potato wholesaler Mitolo Group was fined with $162,000 for infringement in the contract by stating many unfair conditions the Australian Competition and Consumer Commission (ACCC).

Therefore, for our second issue, the sale term of the contract by Marge stating "Coffee Co Pty Ltd accepts no liability for any loss or damage, whether physical or economic, due to breach of contract, failure to perform, or any other reason whatsoever” is not a valid term of a contract. If one looks it from a natural justice point of view, a seller is liable for the goods that he sells. Just by mentioning in his contract that he shall not be liable for any damages does not save him from his responsibility. Therefore under part 2-3 of the Consumer law is Carl is safe and claim damages under this act too.

Conclusion

Carl is entitled to be claim damages from Marge for the misrepresentation she did and for the loss that Carl had to incur for her acts.

Research task-

Introduction

The judicial system of any country is what upholds the constitutionality of the country, applies the law in that country and renders justice. It is a kind of dispute resolution provided by the judiciary. There are two types of approaches followed by countries. One is the adversarial approach and other is the inquisitorial approach. The former one is what is followed in countries like England, USA, India etc under common law where the sitting judge decides who is the guilty one (Law Teacher, 2020). They are there to interpret the law and not to form one. Both the counsels of the parties proposes their contentions and based on the evidences presented, a judgement is made out (Harris et al. 2017). The latter one is applied in most of the European countries under civil law. Countries like France, Italy etc derive their law form the Roman law (Law Teacher, 2020). In this, the judge investigates the case himself. The court intervention is zilch and only depends on the severity of the offence. This approach mostly focuses on the procedure of the trials (Luizzi, 2018).

A country like France has an inquisitorial system and Australia has an adversarial system. Instances could be found in both countries succession law. Like in France, the surviving spouse does not inherit his partner's property while in Australia it is different. In Australia, if a spouse dies intestate them his children and his surviving spouse is entitled to his assets while in France the children and the dying person's blood relations are given more preference. The surviving spouse does not have that authority.

The concept of real and personal property differs in both countries. France follows the concept of universal succession meaning when a person dies, so his property shall be in possession of the state. Whereas in Australia, this concept is very different as the property of the deceased comes into the possession of his legal representatives and his surviving partner.

The legislation of that of France and Australia is different. In France, it has a dual system of legislation. One is called Droit public meaning public law. This gives the principles on how state and public bodies shall operate. The other is called Droit prive or private law. The name suggests that it applies to private individuals and entities. (Georgetown Law Library, 2020). A hierarchy is thereof the laws of France from high to low- loi oranique (institutional acts similar to the constitution); loi ordinaire (ordinary acts voted by the Parliament); and ordonnance ( measures taken by the government) [(Georgetown Law Library, 2020)]. In Australia legislation like the Corporations Act, the misrepresentations act etc are there to govern the cases of this country. The arenas where there is no statute formed that is adjudged based on common law and with the help of precedents

The courts of France are divided into two parts- the judicial courts which deals with civil and criminal law cases and administrative courts which applies the public law (Gerogetown Law Library, 2020). There is another unique feature in the judicial system of France called the Constitutional Council (Georgetown Law Library, 2020) It overviews the statutes before they are enacted, review the elections of the government and the answers to the citizens on their concern regarding the constitutionality of law (Gerogetown Law Library, 2020). In Australia, there is too a hierarchy of the courts with courts of appellate jurisdiction the trial jurisdictions then intermediate courts and then inferior courts and at the lowest is the quasi-judicial tribunals.

One of the unique features that sets France apart from Australia is that it uses case laws that of European Courts of Human Rights (ECHR) as precedents (Tanugi,2016) This concept was evolved in a case Boumaraf v France, [(2011) 32820/08] where it was held that those who do not abide by this law shall be penalized under this convention. Australia has its statutory laws and precedents that work as a foundation for adjudging cases.

Therefore to conclude, the legal system of Australia is more systematic and profound compared to France. However, every legal system has its benefits and repercussions. The usage of common law is seen mostly in Asia whereas civil law is seen in Europe. Britishers had a huge influence in Asia therefore this could be a plausible reason why common law has its influence in Asia. Though Australia is a country and a continent too, common law is more realistic and prudent based and that’s why it has been accepted here.

References for Commercial Law

Georgetown Law Library, 2020. The layout of French Legal system. [Online]. Available at https://guides.ll.georgetown.edu/c.php?g=362135&p=2446075 [Accessed on: 6 June,2020].

Harris, A., Huebner, B., Martin, K., Pattillo, M. et al. 2017. Monetary sanctions in the criminal justice system. Houston, Tex.: Laura and John Arnold Foundation. Accessed August, 15, p.2017.

Law Teacher, 2020. Inquisitorial and Adversarial system of law. [Online]. Available at https://www.lawteacher.net/free-law-essays/constitutional-law/inquisitorial-and-adversarial-system-of-law-constitutional-law-essay.php#:~:text=In%20most%20common%20law%20countries,European%20countries%20and%20continental%20jurisdictions. [Accessed on: 6 June 2020].

Law Teacher, 2020. Inquisitorial and Adversarial system of law. [Online]. Available at https://www.lawteacher.net/free-law-essays/land-law/a-comparison-of-australian-law-essays.php#ftn52 [Accessed on 6 June 2020].

Luizzi, V., 2018. Appeal to the People's Court: Rethinking Law, Judging, and Punishment. BRILL.

Sise, P. 2019. Potato case highlights one of the problems with the unfair contract term provisions. [Online]. Available at https://www.claytonutz.com/knowledge/2019/august/potato-case-highlights-one-of-the-problems-with-the-unfair-contract-term-provisions [Accessed on 6 June 2020].

Tanugi, L.C., 2016. Case Law in a Legal System Without Binding Precedent: The French Example. [Online]. Available at https://cgc.law.stanford.edu/commentaries/17-laurent-cohen-tanugi/ [Accessed on: 6 June,2020].

Boumaraf v France, [(2011) 32820/08]

Bullabidgee Pty Ltd v McCleary[(2010) NSWSC145

Long v Llyod [(1958) 1 WLR 753]

The Potato Case,2019

Whittington v Seale-Hayne [(1900) 82 LT 49]

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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