Question:
Discuss about the tender law of Australia and a provision regarding the Collective bargaining.
The present case is based on the tender law of Australia and a provision regarding the collective bargaining has been discussed through this case. Millennia University has called for certain seeds and certain tender was received on the basis (Vettori, S., 2016). A date was mentioned regarding the closing of the tender and three companies are submitted their willingness regarding the same. There are certain rules regarding the tendering process. It has been held in Hughes Aircraft System v. Airservices Australia [1997] FCA 558 that the tendering process must be supported by way of written procedure or way of signing the final letter regarding the same.
Three companies on several dates tendered regarding the offers made by the University and the university get the tender made by Enviro on 17th May. However, the same was being cancelled due to its early submission and it was required to be submitted properly. The tenders of the green land hands and the Plant forever have went to the tender box which was treated as perfect for the administrative job for the University. However, the offer made by the Enviro was attractive in nature but the file was lost due to certain mistake and the University authorities posted a consent letter to the Plant forever with a view to make the transaction between them.
According to the legal provision, a contract is made when the capable party accepts an offer and both the parties should have a knowledge regarding the same (Morse, S.C. and Deutsch, R., 2016). Consideration is another criteria regarding the contract and if there is no contract made between the parties, the liability of the principle and the tenderer will not arose. The reason behind the same is if there is no mentality to create any legal relationship, the tendering procedure will not be conducted legally. In this case, though the University authority accepted the tender of Plant forever, the same was not reached to the company and therefore, no legal relationship is made in between them.
Knowledge is an important part regarding the validity of the contract and if any of the contracting parties are not know about the contract or the contracting element, the same will not be validated. In Pratt Contractors Ltd. v Palmerston North City Council, it was held that an uncomplicated bidding request is needed but the same will not be treated as an obligation. Therefore, when the tender was brought to the notice of the University authority and the same was accepted, it may created a tender but does not bind on the parties or made no obligation regarding the same. It is being mentioned that until the tender is accepted and the same is getting into the knowledge of the parties, the same cannot be treated legally and no legitimate approach could be taken place.
It has been observed in the case that the letter sent by the university has not been reached to the Plant forever and the company has given the contract to another company. There is no wrongness happened regarding the Plants Forever, who has given the contracts for the seeds to other company. It is rule under the tender as well as the law of contract that the acceptance by the party must be come to the knowledge of another party. It is also stated that both the contracting parties must sign the letter of consent. However, in this case, the letter was signed by the University only. There was no signature by the Plant Forever and even, they do not know about the consent (Keyes 2017). Therefore, it is obvious that there is no contract made between them and no legal relationship has been made within them. Plant Forever is not binding by any obligation regarding the same.
Therefore, it can be stated that there is no contractual position has been made in between any of the parties and therefore, none of the parties are liable for any conduct of them
The case is based on the provision of Australian Contract Act and Electronic Transaction Act 1999. Basic fact of the case is deal with offer (Swain 2014). In Australia, the contract law is attracted the provision of the English law and there is a tendency to follow the common law there. As per the provision of the Australian Contract Act, offer is a kind of communication. It is a promise as against a certain person for a certain job so that the job is to be done by others. Offer can be at any stage and to any person. As per the provision of the Australian Common law, offer is different from the invitation to deal (Alexander and Merkert 2017).
The present case is an approach of auction in nature. According to the provision of Australia, auction is an offer if it is included a bid. In the present case, it has been observed that the Footloose, a shoe manufacturer posted a notice for the sale of shoes with certain rebates and specified the amount clearly. Therefore, it can be stated that the notice published by the company is an offer in nature that was posted on 1st October.
Second provision of the case is based on the acceptance. According to the Australian Contract Act, if an acceptance is made as against an offer, it can be made by way of three positions (Westmore 2015). It can be oral or written or the accepting party may give the hints by way of his conduct. There is no particular form of the acceptance. It was held in the case of Crown v. Clarke, the court of United Kingdom has stated that if the consenting party accept the offer without any coercion or undue influence, the consent can be treated as acceptance to the offer. In the present case, it is seen that the Footloose Co. Posted one notice in a daily news paper regarding the sale of a specified shoes in a certain amount on 1st October. On the next day, 2nd October, one Famous Footwear, accept the offer made by Footloose and fax the same to the Sales Manager of the said company (Goodall 2015).
After two days of such acceptance made by the Famous Footwear, another selling company, Jame’s shoes accepted the offer of the Footloose Co. and fax to the Sales manager of the company by stating their willingness regarding the offer made by the respected company on 4th October. It is stated under the law that if an offer is made to the public in general, anyone can accept the same by way of the provision stated under the law. Therefore, there are certain legality regarding the acceptance of the same offer by both the parties (Ready 2015).
It is to be noted that both the companies have expressed their consent over the offer made by Footloose. However, the Sales Manager of the said company had answered back to Jame’s shoes and therefore, the contract between Footloose and Jame’s shoes have been taken place on 6th October. It has to be mentioned that the acceptor of the Jame’s shoes provided certain offers to the Footloose Co. regarding the sale of the shoes and the Sales Manager of the Footloose accepted all the offers made by him (McKendrick 2014). Therefore, it can be stated that the contract regarding the shoes are made in between the Footloose Pty Ltd. and Jame’s Shoes.
The essential criteria for contract are to have certain consideration regarding the offer material. In the present case, there is certain consideration present regarding the subject matter. When the Sales Manager of the Footloose has accepted the proposal made by Jame’s shoes, he accepted the terms by way of a letter. Written version can be treated as a valid acceptance. On 8th October, James replied to the proposal and decided a date for the final agreement. The essential of an agreement is meeting of minds under the law. Here, meeting of minds take place when the offer of both the parties is accepted.
On 10th October, the final proposition in between the Footloose and Jame’s shoes is made and a date was finalised for the agreement regarding the same (Lam and Lee 2014). The base of the case is evolved with the provision of the Electronic Transaction Act 1999 and the term electronic contract is the main theme of this case. Dilemma arose as there is no specific provision regarding the electronic contract. There is a precise provision of timing is needed here. In the present case, there is a specific provision is mentioned. Therefore, it can be stated that a contract has been made here. In Australian Communication of Media Authority v. Mobiligated Ltd. (2009) the provision regarding the online transaction and electronic contract has been discussed.
References:
Alexander, D.W. and Merkert, R., 2017. Challenges to domestic air freight in Australia: Evaluating air traffic markets with gravity modelling. Journal of Air Transport Management, 61, pp.41-52.
Bailey, J., 2014. Construction Law. Crc Press.
Cartwright, J., 2016. Contract law: An introduction to the English law of contract for the civil lawyer. Bloomsbury Publishing.
Goodall, H., 2015. Contract gangs: race, gender and vulnerability. Cosmopolitan Civil Societies: An Interdisciplinary Journal, 7(3), pp.23-36.
Keyes, M., 2017. Australia: Foreign Law in Australian International Litigation: Developing the Common Law. In Treatment of Foreign Law-Dynamics towards Convergence? (pp. 503-528). Springer, Cham.
Lam, T.I.P. and Lee, P., 2014. A comparative study of standard contract conditions for energy performance contracting in Australia, Canada and the United States. Construction law journal.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Morse, S.C. and Deutsch, R., 2016. Tax Anti-Avoidance Law in Australia and the United States.
Rahmani, F., Rahmani, F., Maqsood, T., Maqsood, T., Khalfan, M. and Khalfan, M., 2017. An overview of construction procurement methods in Australia. Engineering, Construction and Architectural Management, 24(4), pp.593-609.
Ready, K., 2015. Email contracts: Who, what, when and where the formation of binding agreements through email exchanges. Governance Directions, 67(10), p.620.
Skeel, D.A., 2014. Corporate Governance and Social Welfare in the Common Law World.
Smith, R.L. and Duke, A., 2014. Agreements and competition law in Australia. Competition and Consumer Law Journal, 22, pp.54-79.
Swain, W., 2014. Contract Codification in Australia: Is It Necessary, Desirable and Possible. Sydney L. Rev., 36, p.131.
Vettori, S., 2016. The employment contract and the changed world of work. CRC Press.
Westmore, P., 2015. What Australia post can learn from NZ’s Kiwibank. News Weekly, (2943), p.24.
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