In this section of the paper, the constitution of for the tribe is reviewed based on the principles provided by the Hart legal system. Professor Hart who was an eminent philosopher from Britain had provided a system of law which is based on three parts. He has formulated these rules to ensure the efficient functioning of the legal system within a state. The three rules which have been provided by Hart in his book “concept of law” include the rule of recognition, the rule of change and the rule of adjudication.
The rule of change is in relation to addressing the any defect law or and ensuring that the law is always up to date with the changing needs of the society. The rule of recognition is in relation to ensuring that the law is uniform to all and it maintains the notion of certainty and consistency (Croce, 2014). The rule of adjudication is in relation to the way in which issues in the society have to be addressed by the legal system. There has to be neutral judges and a platform has to be provided to appeal against the decision. In order to ensure that the rule of change is incorporated within the constitution it has been provided with a clause through which rules can be altered and new rules can be made in a systematic manner. In order incorporate the rule of adjudication within the constitution it has been ensured that there is an appeal system to address any decision which has been made by the judges.
In addition a clause also has been incorporated to have neutral judges to address the issues. For the purpose of incorporating the rule of recognition, the doctrine of precedent has been introduced through which previous decisions have to be taken into consideration while addressing new similar issues to ensure consistency. In addition everyone has been subjected to the law equally by the constitution.
Part B
In every legal system there are punishments and penalties which have been set out to prosecute any person who has been involved in a criminal activity. In most of the jurisdictions, in order to make a person liable to get punishment for a criminal activity it has to be provided beyond reasonable doubt that the person has committed the crime. The punishment has to be just enough to ensure deterrence of such actions by such person in the society and setting an example before the other. For instance in UK a person who has been charged with the offence of murder may be subjected to life sentence with a minimum non parole period of 15 years.
In relation to rape a person is sentenced for an average period of five years. These sentencing timeframes are not the same in Australia as they are different in jurisdiction because of culture and belief. In Australia a person who has been charged guilty of an offence of sexual assault can be provided a sentence for 14 years. In addition a person who has committed murder in Australia is also provided a maximum life imprisonment penalty but with a non parole period of years.
In the situation related to punishment for a criminal offence it has been stated by the Hart legal system that the penalties should be decided according to the situation of the society, if the deterrence of crime requires more severe punishment then such punishment has to be provided to make the system effective. This is the reason why different jurisdictions have different penalties for the same offence being committed. The penalties are present to address the needs of the society (Geoffrey, 2013).
Part C
Issue
The primary issue which needed to be addressed in relation to the case of Gumland Property Holdings Pty ltd.V Duffy Bros Fruit Market ( Campbelltown) Pty Ltd (2008) 234 CLR 237 was to identify the right of the landlord to obtain damages which included loss of bargain damages after the tenant had breached an essential agreed term of the contract.
Rule
In the case of Shevill v Builders Licensing Board – [1982] HCA 47 it had been provided by the court that if the lease had provided clearly that in situation where The lessor had used the right to re-entry given by the lease he would be able to recover a loss which he may have suffered because of pre-mature termination of the lease.
In the case of Bettini v Gye (1876) 1 QBD 183 it had been stated by the court that under the general rules of contract an aggrieved party has the right to terminate a contract and claim damages as well as loss of bargain damages in case there is a fundamental breach, repudiation or a breach of condition which means the breach of an essential terms. Under these principles it is possible through express provisions in a contract to render a term as a condition, even where it would not be considered as the same where such express provisions are not present. This is not only done for the purpose of providing support to terminate a contract, which has been conceded by the Lessee but also to be provided with the power to recover loss of bargain damages.
Section 117 of the Conveyancing Act provides that rent which has been reserved via a lease and the advantage of all provisions or covenant therein it has in relation to the subject matter, on the part of the lessee has to be performed or observed, all condition of re-entry or other conditions, which are present has to be annexed, it shall go with the land’s reversionary estate or in part immediately clear thorough the terms provided by the lease, not taking into consideration reversionary estate severance and have to be capable of being received, enforced, recovered and taken advantages of by person on a timely basis, with respect to terms, to income of any part as the case may require.
Application
The landlord in this case owed a grocery tenancy in a shopping centre Transit Management Pty Ltd. The tenant was Duffy Bros Fruit Market (Campbelltown) Pty Limited who took a 15 year lease. The tenant had been experiencing difficulty in trading and was not able to pay the rent. The tenant agreed a new lease with the land load under which he was to have a subtenant and ensure that there s no further breach of the lease. The court of appeal and overturned the decision of the district court stating that the new landlord Gumland Property Holdings Pty Ltd is not allowed to claim damages as an essential term has not been violated. However the appeal of the landlord had been allowed by the High court.
The court stated that the deed was not in operation independently of the lease but change the terms of the lease. The payment of rent was expressed via the parties to be an essential term of the lease. The court stated based in the principles of Bettini v Gye that it was a fundamental breach or a breach of condition. This is because the parties had used clear words to identify the intention of making it a condition. When a condition has been breached the aggrieved party can claim compensation and rescind the contract.
Conclusion
As the condition was breached of a contract the party could end the contract and claim damages.
Part D
Case selected: Alati v Kruger 1955 HCA 64; ALR 1047
Issue
The issue in this case is to determine that whether there had been a fraudulent misrepresentation committed by the defendant
Rule
There are a few elements which needs to be established for the purpose of having a valid claim for misrepresentation
In the case of Bisset v Wilkinson [1927] AC 177 it had been ruled by the court that in order to establish misrepresentation there has to be a false statement of fact and not a statement of future events or opinion.
The case of Smith v Hughes (1871) LR 6 QB 597 the court clarified that silence would not be considered as a form of misrepresentation unless the contract is that of utmost good faith.
There has to be an inducement or reliance on the above discussed false statement of fact in order to establish misrepresentation as per the case of Horsfall v Thomas [1862] 1 H&C 90 a person who is making a claim for misrepresentation has to show before the court that he or she had been induced by the other person who had made the false statement of fact to get into the contract. Without such reliance on the false statement to get into a contract a person cannot establish negligence.
The provisions of fraudulent misrepresentation had been analyzed through the case of Derry v Peek (1889) 5 T.L.R. 625. The elements of fraudulent misrepresentation include, knowing that the statement of fact is false, having no belief that it is true, and making it recklessly or intentionally to the person.
Section 18 of the Australian Consumer Law prohibits a person in the course of trade and commerce to enter in a conduct which is considered as misleading or deceptive or what is likely to mislead or deceive.
Application
In this case Purchased a fruit business on a lease hold premises for a price of 700. It had been alleged that P had been induced to enter into the contract through fraudulent misrepresentations. He had been represented that the business has an earnings of £100 per week.
In this case the court analyzed the elements of misrepresentation. The court held that the statement which has been made by the defendant in this situation was a statement of fact. This was a statement of fact as it has material value associated with it and it is not a mere opinion. The court also came to the conclusion that the statement of fact was not true. This is because the business did not actually have a earning of 100 per week.
The plaintiff was also found to have relied on the statement to get into the contract and thus the element of inducement is also satisfied. Thus the court found that the misrepresentation took place. The misrepresentation was fraudulent as it had the elements of knowing that the statement of fact is false, having no belief that it is true, and making it recklessly or intentionally to the person. Thus the court ordered recession and damages to the plaintiff.
In the same way under section 18 of the ACL, the conduct of the defendant would be considered as misleading and deceptive as the defendant fraudulently sold the business to the plaintiff. The plaintiff could also make a claim under the ACL
Conclusion
In conclusion it can be stated that as in this case all the valid elements of a misrepresentation had been satisfied the party was allowed to rescind the contract and claim compensation from the defendant as it was a fraudulent misrepresentation.
Part E
Issue
The issue in this case is that whether Pedro has the right to enforce the restrictive covenant against Lisa which she had in her contract with him
Rule
A contract is a legally binding agreement between two parties. This means that if the terms of the agreement have been violated that aggrieved party has the right to make a claim against such violation and enforce a contractual remedy against the wrong doer.
A term in a contract can be declared as an unfair term in case it is not in compliance with existing legal provisions.
A restrictive covenant or a restraint of trade clause is valid or not depends upon the question that where the terms of the clause are reasonable.
The case of Freedom Finance Accounting Pty Ltd v Goldstein [2017] VSC 179, depicted the significance of drafting concise and clear restraint of trade clauses in commercial agreements. A restraint of trade clause is a doctrine which prevents another party to indulge in a specific trade or employment for a certain period of time. A business sale agreement may have a restraint of trade clause. In this case Freedom Finance Accounting Pty Ltd had formed an agreement to purchase the accounting firm Farrell Goldstein.
The owner of the accounting firm had been restrained for three years from providing accounting and non accounting services to clients within a 100KM radius. The court stated that in Australia a term which restrains trade is void prima facie. The exception is that the clause can be introduced if it is reasonable to provide legitimate protection to business. In case any part of the clause can be considered as unreasonable than the court will remove such part if the clause can be enforced without such part.
In the case of Vancouver Malt and Sake Brewing v Vancouver Breweries [1934] AC 181 the court stated that a clause restricting trade for 12 months was unreasonable as per the situation of the business
Application
It has been provided in the situation that Pedro and Lisa were engaged in a business to sell jewellery. Pedro had purchased the business from Lisa. A restraint of trade clause had been incorporated in the contract where Lisa was not allowed to indulge in trade for a period of 2 years anywhere in Australia.
As per the above discussed rules in Australia a term which restrains trade is void prima facie. The exception is that the clause can be introduced if it is reasonable to provide legitimate protection to business. In case any part of the clause can be considered more unreasonable than the court will remove such part if the clause can be enforced without such part.
In addition it has also been discussed that the court stated in Vancouver Malt and Sake Brewing v Vancouver Breweries that a clause restricting trade for 12 months was unreasonable as per the situation of the business. Here it can be stated that clause which has been imposed on Lisa is unreasonable. She has been asked not to carry out trade in any part of Australia. This is not a reasonable step to provide genuine protection to the business. In addition the 2 years, also is an unreasonable time given the circumstances of the business. Thus it can be stated that the restraint of trade clause is not valid.
Conclusion
Pedro cannot sue Lisa successfully as the restraint of trade clause which has been identified in the situation is not valid.
Bibliography
Alati v Kruger 1955 HCA 64; ALR 1047
Bettini v Gye (1876) 1 QBD 183
Bisset v Wilkinson [1927] AC 177
Croce M (2014). “A Practice Theory of Legal Pluralism: Hart’s (inadvertent) defence of the indistinctiveness of law.” Canadian Journal of Law & Jurisprudence 27.1: 27-47.
Derry v Peek (1889) 5 T.L.R. 625.
Freedom Finance Accounting Pty Ltd v Goldstein [2017] VSC 179
Geoffrey C (2013). “HLA Hart’s Lost Essay: Discretion and the Legal Process School.” Harv. L. Rev. 127 (2013): 666.
Horsfall v Thomas [1862] 1 H&C 90
Shevill v Builders Licensing Board – [1982] HCA 47
Smith v Hughes (1871) LR 6 QB 597
Vancouver Malt and Sake Brewing v Vancouver Breweries [1934] AC 181
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