Issue
The issue involves in the instant scenario is what are the rights if the offeree under Law of Contract.
A contract is described as series of promises or promise that is binding under law. In this perspective a promise is describe as responsibility taken by one individual to perform something or abstain from performing something if another individual perform something or abstain from performing something or invites an assurance in return. Thus promise under law of contract in Australia is considered to be legally enforceable if certain requisites are fulfilled. In Australia this obligates an arrangement consisting of acceptance and offer, intent to construct legal relationship, consideration, obedience with the statutory formalities and that the contractual parties possess statutory capability to enter in contract.
The first requisites for an enforceable contract is formation of an agreement. An arrangement is generally fragmented into two portion that is offer and acceptance and also includes a get-together of minds of the parties that is termed as consensus among parties.
In the case of Smith v. Hughes, it had been held by the tribunal that there was formation of contract and it did not trouble that the subjective intent of the contractual parties varied that is Smith intends to vend new oats and on other hand Hughes intends to purchase old oats. The conduct of Hughes was as such that the prudent person would consider that he was assenting to the conditions as presented by Smith. In other manner the arrangement is recognized objectively by mentioning to the performance of the contractual parties somewhat than subjectively by mentioning to the real intent of the distinct parties. The offer can be terminated by the offeror by implication of several methods that is rejection, revocation, miscarries to approve to on time, failure of conditions, and death.
Acceptance is designated as an unambiguous statement that is made either in written, oral, or by performance by the offeree which is accepting to the proposal. To be operative the acceptance to the offer should be communicated and a mental judgment to approve is nor adequate. Under law of contract in Australia the general doctrine is that there is conclusion of an enforceable contract where and when the communiqué of acceptance to the offer is received and in addition to that communication to the approval is deemed to have acknowledged when it is conferred to the one who makes the particular offer. The principle is applicable even though if the offeror did not recited it. In case post probably other non-instantaneous approaches of approval is applied a special doctrine implemented that is termed as “postal rule”. In accordance to the postal rule post is anticipated by the distinct parties either by implication or expressly, there is occurrence of an acceptance to the offer where and when the letter is dispatched.
In the case of Felthouse v. Bindley, the respondent was an auctioneer. The nephew of the plaintiff Felthouse communicate with his uncle concerning the buying of horse and successively wrote relating to the cost for the horse. The plaintiff responded that he would pay only 301 15s and along with that he also specified that if he did not hear anything more concerning the same then he deemed that the particular horse purchased by him. The plaintiff that is John Felthouse succeeded in the proceedings.
In the case of Mobil Oil Australia v. Wellcome International Mobil, it had been held by the tribunal that in a unilateral arrangement the conduct of approval is also the deed of performance and consideration. There is no worldwide proposal that the offeror is not at right to rescind the offer as the offeree embarks or commences upon the performance of the deed of conduct. Consequently except there is ancillary assurance not to take away the proposal once there is commencement of performance, the offer might be rescind at any time.
Jenny initiate business and purchased a car for his work. As the car has been giving troubles she decided to sell the car. She send email on 1st June to Hayley that particular car is for sale and the price of the car is $ 4000 and also states to communicated her by 10t June. Hayley in response to her mail expressed that he need some time and in the and also asked Jenny not to vend the car to anyone. This concluded a formation of contract among Jenny and Harley. Jenny again mailed him on 5th June stating that she did not intend to sell the car. All over again on 7th June Jenny mailed that she intends to sell her car. In the meantime on 6th June Harley send a letter along with cheque enclosed. The letter arrive to Jenny on 12th June and she sold the car to another purchaser Herbie on 11th June.
Therefore by close analysis of the instance case it had been construed that a valid agreement is concluded among Hayley and Jennie. Furthermore it is also considered under general law of contract that once that the letter has been dispatched it is deemed that there is communication of acceptance. Therefore Hayley as the offeree has the legal entitlements to enforce the contract.
Conclusion
Thus as the valid arrangement is concluded among the two parties, the legal rights that is preserved to the offerre under law of contract is to enforce the contract as per the specified terms. In case the offeror miscarries to carry out the specified terms then the offerree is entitle as his statutory rights to get damages in the form of liquidated claims or equitable remedies.
Issue
The issue that involves in the instant case is whether there have been violation of the Australian Consumer Law and the relief that might be sought.
Rule
The Australian Consumer Law facilitates a constitutional guarantees on the particular goods whether second-hand or new as well as services leased or hired. The unfair contract conditions legislation implement to the consumer arrangements as described by both Australian Consumer Law and Australian Securities and Investment Commission. In pursuance to Australian Consumer Law the consumer arrangement is the agreement concerning the supply of services or goods to the person who attain it predominantly or wholly for domestic, personal or household consumption or use. The legislation does not inflict penalties on a trade that seeks or involves to trust on unfair terms in contract. Nevertheless the customer and the Australian Consumer law regulators can also seeks compensation concerning any loss that is sustained as a consequence of a conditions of standard contract form that is held to be unfair. The regulators of Australian Consumer Law can also implement o have a condition of certain standard arrangement that is stated to be unfair. If it is so stated then the conditions will be void in that specific arrangement and in all the standard method arrangement that entails that terms. The “unfair contract terms is described as the terms that has been arranged by one party to the agreement and is not open to settlement among the parties.
In order to examine that whether the good that are sold are of acceptable quality when a prudent consumer fully conscious of the conditions of goods would observe the following:
The test that take in regard
Bill Jobs was a keen competitor in the computer business and start his new business with product named Winpple’s HiPad. However all advertisement regarding the product were set against American background and the packaging omit to specify that it was manufactured in Australia. It was concern that purchasers of the products faced several problems concerning the products and the clause laid in the product clearly specify that the company is free from liability regarding any defects arising after the period of six months from the date of purchase of product. Such purchase and sale conditions raise several issues for the purchaser of the products.
In the case of Wealtherill v. Bartett [2017] NSWCA 175, concerning damages claimed under Australian Consumer law. The upshot of story of Dr. Weatherill is that measure concerning deceptive and misleading conduct in pursuance to Australian Consumer law, an evaluation should be employed as to whether any actual loss has been incurred as the consequence of conduct.
In pursuance to the relevant provision of the Australian Consumer Law it is construed that the customers cannot sign away the guarantee rights of the consumer. In case the manufacturer or supplier tries to put conditions in their agreement to evade liability they may be deemed as misleading the customer concerning their statutory rights to compensate concerning the consequential loss. Thus any such conditions may be deemed to be unfair contract conditions.
In accordance to the Australian Consumer Law if the services or goods miscarries to fulfill a guarantee then the customer has legal entitlements that can be exercised as against the supplier or manufacturer in order to position his liberty a failure, deficiency or fault to fulfill the liability. The remedying may be in the form of replacement, repair or refund, cancellation of service, compensation concerning damages and consequential loss.
Conclusion
Thus it can be considered from the discussion mentioned above that if the packaging of product made in such manner that misleads the consumer or any sale and purchase conditions is considered to be unfair then the consumer is entitle to claim compensation under Australian Consumer Law.
McKendrick, Ewan, and Qiao Liu. Contract Law: Australian Edition. (Macmillan International Higher Education, 2015).
Bretag, Tracey, et al. “Contract cheating: A survey of Australian university students.” (2019) Studies in Higher Education 44.11 1837-1856.
Gillies, Lorna E. Electronic commerce and international private law: A study of electronic consumer contracts. (Routledge, 2016).
Durovic, Mateja, and Hans W. Micklitz. Internationalization of consumer law: A game changer. (Springer, 2016).
Scott, Colin. “Enforcing consumer protection laws.” Handbook of Research on International Consumer Law, Second Edition.( Edward Elgar Publishing, 2018).
Felthouse v. Bindley [1862] EWHC CP J 35
Smith v. Hughes (1871) LR 6 QB 597
Mobil Oil Australia v. Wellcome International Mobil (1998) 81 FCR 475
Wealtherill v. Bartett [2017] NSWCA 175
Australian Consumer Law, 2010
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