Commercial Law - Question 1

Issue

  • Can Madison sue Jake’s Transport for negligence?
  • is vicarious liability applicable?
  • What defences can the company claim for the tort of negligence

Rule

Tort of Negligence

Precedents

Application

For any act of the person to be considered to be negligent, the plaintiff has to show that the conduct of the defendant was negligent. To prove that the tort of negligence has been there, three major elements had to be proved. First, the defendant should owe a duty of care to the plaintiff. Second, the defendant had breached the said duty as in he dodged in performing the said duty. Third, there must be a direct link between the breach of duty of the plaintiff and the loss and injury the plaintiff suffered. It was in the 20th century when negligence gained prominence. prior to that, there was no specific legislation that would determine the tort of negligence.[1]

The concept of duty of case means when the person or in any case a defendant is able to practice reasonable care and precaution wild charging his duty to another person. This principle had laid its foundation in the case of Donoughe v Stevenson.[2] The issue before the court in this case was whether the manufacturer of the product had a duty of care to its customers. Lord Atkin based his judgement on two tests, 'reasonable foreseeability' and the 'test of the neighbourhood.' Furthermore, it is expected that the plaintiff is not a position to prove that whether the defendant so or could have foreseen the harm but involves the question of how a rational individual would have reacted in the different its position as per Sullivan v Moody.[3]To set the standards of the community, the high court in the case of Tame v New South Wales[4] adjust the case based on reasonableness. The court held that it other factors such as reliability of the plaintiff on the defendant to keep them safe, the vulnerability of the plaintiff and whether the defendant had voluntary assumed the risk or responsibilities for protecting the printers and circumstances had to be taken into consideration in deciding the case of whether the defendant owed any duty of care to the plaintiff.

In the given case, on August 28 2018, Madison acclaims that then you to the standard of functioning in the premises that were adopted were not of any help to her. Her supervising manager Jane had adopted the concept of trolleys that would help the employees to not lift up the empty crates and place them. While Madison was at work, on that day, she couldn't find any trolley that was available at the premises for others, you come to her aid. None of the trolleys came to her for her help. As a result of which, she had to do the task herself which resulted in a spinal injury which currency had encapsulated her. Being told by Jane that's it that's all is well all full after the injury she saw jakes transport to have bought more trolleys on which the crates could have been placed. Interpreting the facts of the case, Madison can claim the tort of negligence on part of her company. The reason being the injury caused to her was a result of a lack of standard duty of care and breach of that duty by her company. It is claimed by her that she was employed for the past three years and since then she had seen people lifting the crates without using any trolley. She claims that there was no training given on what conditions and circumstances should people lift the crates. She had seen people of the age of 60 years be lifting the crates all by themselves. Hence she never thought that her doing her job could possibly lead to her injury. But since the company was obligated to provide trolley for such tasks they did not do so. This shows that there was an unexpected duty of care which the company had breached and as a result of it the plaintiff suffered injuries. Therefore, Madison is eligible to claim the tort of negligence.

The concept of vicarious liability is not applicable to the facts of the case. This Maxim is based upon a general notion that if there is any place of danger or task that is dangerous on which it is expected of the plaintiff two not be a part of, but still he is present there or does the task voluntarily, and if any injury is infected upon him then he cannot claim negligence on part of the defendant as he voluntarily exposed himself to that risk. Applying this Maxim in the facts of the case, Madison was employed there for three years and she had seen many people list of the crates with their own hands. Amongst these people of the age of 60 years were also involved. Therefore she never thought that her doing her job could lead to her own injury as she had done these jobs many time in the same manner as in the past. Therefore she did not expose her to any risk but it was due to the sheer negligence on part of a company that she suffered injuries.

Conclusion

The defences which the company could claim against Madison is that if they could prove that during the induction program she was not present and hence she forgot that how things are done. Also if her supervising manager good drink people to testify that's other employees of the company do not lift the crates with the hands.

Commercial Law - Question 2

Issue

Can Tiana sue Yusiang under contract law?

Rule

Contract Law

Precedents

Application

A contract could be of two forms express and implied. Express is based upon a written contract and implied is based upon court or common law. For a contract to have any legal binding it has to fulfil 6 essential elements. First is there must be an intention to create a legal relationship, second, they must be a valid offer, third they must be a valid acceptance, forth they must be a consideration given by the offeree, fifth both parties must have the capacity to enter into a contract and the last the contract must be legal.

This case is a sheer case of an implied contract. It is a verbal contract as none of the parties has anything in writing. As for the case of BP Refinery (Westernport) v Shire of Hastings[5], it is held that there are five conditions that must be satisfied for concluding that a contract is implied-

  1. The terms must be reasonable and equitable
  2. It must be necessary to give the contract business efficacy
  3. It must be so obvious that it goes without saying
  4. It must be capable of clear expression
  5. It was not contradicted any express terms of the contract.

Conclusion

In this case, Y gives an invitation to the offer bye by putting an advertisement online which talked about him selling his watch. T when giving a call to Y she made an offer to pay $45000 compared to the initial offer of $50,000. This offer was counted by Y with $47,500. The discount offer was not accepted by T as her comment showed that she was going to think about it and asked Y to not to sell it to anyone before then. To this by replied that he won't. Here Y give his consent to T that he will not sell a way to watch but wait for her response. This was a clear expression of him not going to sell it further. However, when N offered for $50000 he accept it and sold the watch and the Australian penny coin to him. Clearly, this shows the express terms of the contract was violated by Y and as a result T can sue Y for breach of contract.

Commercial Law - Question 3

Issue

Can Jasmine sue Nikita for breach of payment of remaining of the balance?

Rule

Contract Law

Precedents

Application

The general principle of any contract to be legally valid involve 6 elements- there must be an intention to create a rebate relationship, they must be a valid offer, they must be a valid acceptance, there must be a valid consideration, There must be a capacity to contract among the contracting parties, the contract must have a legal validation.

The current problem involves the situation to decide whether there was a legal contract between Nikita and Jasmine. Nikita is a 17-year-old girl who needed a job to pay her rent and bills. As a result, she found an online advertisement where she needed an appropriate computer to fulfil the job requirements and do work from home. She went to this orange computer store which belongs to Jasmine. The cost of the computer was $2000 but Nikita had only $1000. The remaining amount of $1000 they both agreed to leave as a deposit. However, the terms of a contract set that Nikita how much to pay the remaining balance at $100 interest-free per week and then only can she have the computer. Nikita had agreed to this and handed over a current computer also. After a month of working, she decided to quit her job. As a result, she stopped paying for the computer.

A contract by a minor for his personal necessities stand binding in the eyes of law. The term necessities are determined by the minors existing lifestyle and also depends from case to case whether the term necessity stands valid for the purpose of the contract. This is stated as per section 7 of Goods Act, Victoria. In Nash v Inman,[6] Nash was a tailor who entered into a contract to supply Inman, who was a minor and was adequately supplied with clothes by his father. When this case was at trial it was held that it Inman had enough clothing to be provided and therefore the contract was not to be e considered a necessity for him. A similar opinion was held by the court of appeal with a slight modification. It invalidated the capacity of the contract as Inman contact do not satisfy the ambit of necessity. However, his father had an obligation to pay the supplier for the services given to Inman as he showed that it was a necessity for him. So even though the contract was invalid as Inman was a minor, still his father is obligated to pay the supplier for the clothing he provided.

The validity of the contract hence does stand valid reason being Nikita as even though she is not a competent party to contract, the job was necessary for her to pay her rent and her bills. As per the Australian contract law, the age of a competent party must be above 18 years of age. Since Nikita years 17 years old when she contracted with Jasmine, so she does not fulfil the element offer a valid contract that is valid competency of the contracting parties but do fall under the exception clause which states that if there is the necessity of the minor, then the contract stands valid.

Conclusion

So in conclusion, the contract between Nikita and Jasmine is valid and Nikita had to pay Jasmine for the rest of the interest payment as promised with her.

Commercial Law - Question 4

Advantages of Partnership-[7]

  1. It could be formed easily

Unlike joint-stock companies, partnership firm could be formed without any legal formalities. There is no requirement of any legal form documents of partnership. To Form of partnership organisation, there is no exhaustive requirement that the contract must be oral or written. Even the registration of a partnership is not compulsory.

  1. It is flexible in raising funds

As compared to a sole proprietorship, a partnership form of organisation enjoys large resources so that scale of operation could be widened and have the benefit of large scale economies. A total number of partners determined the capital that is needed in a partnership. The name of the partners, the more the capital.

Disadvantages of Partnership-[8]

  1. Lack of Harmony

In a partnership, it is very difficult to have a consensus of all of the partners in an issue. Such disharmony results in lack of coordination and lack of management in the firm. Continuance of such things results in each partner blaming the other for all of the wrong things that happen. This leads to disruption of an ultimate winding up of the firm.

  1. Instability of the partners

Partnership firm comes to an end mostly after any death, lunacy, or insolvency of the partner. It could also be dissolved if any of the partners expresses his desire to do so, or any wrongful act done by any other partners.

Advantages of a Private Company-[9]

  1. Considered to be a separate legal entity

A private company is considered to be a separate legal entity in the court of law. This means the asset and liability of the director are distinct from that of the assets and liabilities of the company. It separates the management and ownership from the directors which means the directors of the company are responsible for the success and also for its failures.

  1. Directors have a limited liability

Such company possesses limited liability which means that is there is any financial risk management a loss in the company the personal assets of the members shall not be used to pay the dents of a company as the liabilities of the member limited.

Disadvantages of Private Company-[10]

  1. No transferability of Shares

It limits the transferability of shares which means that its directors or any stakeholder the company cannot transfer once allotted shares.

  1. Cannot raise Prospectus

One of the major disadvantages of a private limited company is that we cannot issue prospectus to the public. This means that they have to praise the capital of the company either by taking aid from any financial institution or by the initial investment of the directors.

In the position that Zhaogi, Axzel, Daniel and Nabila are in, partnership form of business shall be appropriate for them. Reason being there are four students who were studying in a university who shall not have much of an experience on how to do the paperwork and raise funds from any financial institution or the stock market. Therefore It shall be easier for them to set up a partnership form of business as it could be easily formed with an equal investment of funds.

Commercial Law - Question 5

Issue

How can Amiee stop Bianca from claiming false claims?

Rule

Australian Consumer Law

Precedents

Application

As per section 18 of the Australian consumer law 2010, which is contained in schedule 2 of the Competition and Consumer Act 2010, states that any person who is in trading and does commerce should not engage in any conduct which is misleading or deceptive or is likely to mislead or deceive. Provision was contained in section 52 of the Trade Practices Act 1974 which was moved to section 18 of the Australian consumer law. As per Butcher v Lachlan Elder Realty Pty Ltd,[11] held that there was no misleading or deceptive conduct on part of the defendant. It was held by the high court that reasonable purchaser would have read the full document including the disclaimer. Therefore the agent of the company is not to be blamed for giving any misleading information as the company had attached its disclaimer along with the current document.

Conclusion

As a result, Amiee can pursue misleading conduct and deceptive charges against Bianca. The product advertisement which it did was misleading and deceptive as a product did not contain natural strawberries but a mixture of cheap imported Syrup. As per the CSRIO report, the jam contains 60% of strawberries and 40% of cheap imported syrup. Hence, advertising the false features of the product would lead to to the Australian competition and consumer commission to impose penalty e for the deceptive and misleading advertisement

References for Tort of Negligence

Kiefel, ‘Developments in the law relating to medical negligence in the last 30 years.’<https://www.cla.asn.au/News/be-warned-medical-negligence/#gsc.tab=0>

Donoughe v Stevenson [1932] A.C. 562

Dharti, ‘Advantage and disadvantages of a Private Limited Company.’ (2020) <https://ebizfiling.com/blog/advantages-and-disadvantages-of-private-limited-company/>  

Sullivan v Moody (2011 HCA 59]

Tame v New South Wales (1980) 29 ALR 217)

BP Refinery (Westernport) v Shire of Hastings (1977) UKPC 13

Nash v Inman (1908) 2 KB 1

Butcher v Lachlan Elder Realty Pty Ltd (2004) HCA 60

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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