Investigate how the tort of negligence and contract law have an impact on Amazon.com.
Contract law is the body of rules governing the contractual agreements that take place between persons or businesses. In this context, a new contract has been described as an agreement that has been finalized between the parties in which outlines the duties and responsibilities of the parties towards each other. A contract can be formed regarding any type of transaction. In this way, the contract law deals with various transactions related with sale of goods and services. The law of contract provides what can be included in a contract and what cannot be added and similarly the remedies that may be available to the other party in case of a breach of contractual obligations by one party. As compared to it, the tort law is related with the situations where one person has caused harm or injury to the other person. In this way, the tort laws cover the violations, where, has been caused to the other party intentionally like battery.[1] Tort law also deals with the incidents where a party can be held liable even if it had not acted intentionally writing cases of negligence or strict liability claims. Generally tort laws resulted in the paying of monetary damages by the liable party as compensation for the loss suffered by the other party.[2]
It is regard, there are certain similarities present between contract law and tort law. At the most basic level, both these laws are generally related with the duty and a breach of such duty. In case of the breach of a contract, the violation is related with the duties that have been prescribed by the contract. While it may be mentioned in the contract that it is the duty of one party to pay the other party for the repair services provided by such a party and at the same time, the other party was going to provide the repair services. Therefore if any of these parties failed to perform its obligations under the contract, a suitable remedy may be available under the contract law.[3]
In case of most of the violations of the tort law there is a breach of duty. For example, personal injuries may take place as a result of the breach of duty by the other party, which requires such party not to cause harm to the other person.[4] There are certain relations in which a duty of care is imposed on a party like it is the duty of the shopkeeper to maintain the premises properly so that it remains safe for the visitors to the shop. An award of damages can be obtained in case of contract as well as for the violation of tort law. Damages can be described as the monetary payment that is tabled by the liable party regarding the losses that may be suffered as a result of the breach.
It needs to be noted that while there are several similarities present between the law of contract and the law of tort, there are also certain basic differences present between the two. One of the most significant difference is that exists between the law of contract and tort law is related with the issue of consent. While in case of contract law, the parties enter into the contract knowingly and without any coercion to do so. For the purpose of creating a valid contract, among other things, it is also necessary that the parties should give their consent to the outcome of the contract as mentioned in the document.[5] The meaning of this requirement is that a party cannot be forced to enter into the wanted by the other party without its free will.[6] As a result, in case of contract, generally the damages are related with the mistake or misunderstood in the parties because the parties are typically aware of the nature of transaction that they’re going to enter through the contract.
On the other hand in case of tort law the indirection is never based on consent. Generally torts involve an intrusion by one party in the health, safety or the privacy of the other party. Therefore, if consent is given by the victim to the tortuous act, it may result in providing a defense to the other party, as a result of which the party may not be able to recover damages.[7] This difference related with consent can be seen in the way in which damages awarded by the courts. Therefore, in case of contract, the purpose of awarding damages by the court is to store the parties to the original position in which they were before the breach of the contract.[8] On the other hand in case of a claim under tort law, generally the damages awarded for compensating the victims for the loss of injuries suffered by it. Sometimes, punitive damages are also awarded under the tort law for the purpose of managing the defendant. However, you damages are not generally issued in case of a claim under the contract law.
For example, Amazon has told that it is going to change its contracts for small businesses so that it can fulfill the Australian rules. The Australian authorities have also written to Amazon in other to make sure that the company complies with the unfair contract term legislation of Australia.[9] According to the terms and conditions of Amazon, the company always reserves the right of refusing service, terminate rights to use, terminate accounts or to remove or edit content at its sole discretion. However, it can be considered as unfair, because in this case, one party, Amazon can take action, but the other party, the vendor cannot take action to terminate the contract. As a result, the authorities in Australia have passed the Amazon to review these terms and conditions that are going to be used by the company in case of standard form contracts related with its operations in Australia in order to make sure that the company follows the unfair contract terms legislation. As a part of its big push, Amazon is opening up opportunities for a large number of businesses in Australia to sell at home and abroad by using Amazon Marketplace. The authorities in Australia considered the pending arrival of Amazon marketplace in the country as an opportunity for a large number of small businesses to compete online and also to significantly extend their reach.[10] But at the same time, the company needs to remember that it is obligation according to which. It should be the small businesses in Australia fairly and according to the Australian laws. While there are certain businesses that are concerned with the threat of competition, there are many other businesses that are excited to follow the opportunity that is going to be offered by Amazon.[11]
In case of the consumers, Amazon Marketplace promises to offer extended choice and also to put downward pressure on prices of goods. The authorities will be particularly interested in seeing how the small businesses in Australia will be able to accelerate sales and widen their customer base by using the Amazon platform.
After an analysis of the contract used by Amazon Marketplace, it can be suggested that the contract needs to be changed so that it complies with the federal legislation in Australia. As a result of the reaching changes made in the Australian consumer law introduced for the purpose of protecting small businesses from unfair terms related to this standard form contracts, these changes become more important.[12] In this context, a standard form contract can be described as the contract that has been prepared by one party alone and the other party did not have any chance of negotiating the terms of the contract. In the same way, and unfair term can be described as the term that results in a significant imbalance in the rights and obligations of the parties and results in causing a loss to small business if such a term was applied or relied upon.[13]
Sometimes, the question has been asked if a party can file a claim under contract law and also under the tort law in the same lawsuit. Generally, it needs to be noted that there is a big difference present in the claim under contract law and the claim under tort law due to which these two claims have been filed separately. In this regard, an example can be given of a case where a contract has been breached by a party and the other party becomes angry and assaults the person who has violated the terms of the contract. Therefore in such a case the issue of the breach of contract needs to be considered in one lawsuit and there should be another lawsuit, which deals with the claim for assault. While on one hand, there can be certain cases where a claim under tort law and a contractual claim can be so intertwined with each other that they may need to be heard by the court in the same lawsuit. Generally it is required that the tort should affect the subject matter of the contract for the purpose of the two suits to be filed concurrently and at the same time. For example, the swords may be filed concurrently in case of a breach of contract and at the same time, for fraud. In such a case the reason for doing so is that the breach of contract is based on the fraudulent conduct of the other party.
It is expected that the entry of online retail giant, Amazon will be going to change of face of shopping in Australia. However, it is estimated that, mainly the major retailers will have to face the wrath of the move made by Amazon. On the other hand, there are many experts who claim that the entry of Amazon is going to be really good for independent brands. There will be a situation where such brands can move on from selling on their own websites to selling the products on Amazon site simultaneously.[14] The result will be that a whole lot of new customers will be effectively introduced by Amazon, which will be to potential customers for these brands. In this way will be a big opportunity for the local retailers to engage themselves with, the online retail giant Amazon.
At the same time, it is also true that there will be a price war. It has been shown by the history that was probably the retailers in Australia will not be able to win the Christmas price war with Amazon. The reason is that the company brings volume of purchasing and at the same time it also results in bringing down prices. The reason is that Amazon has the long pockets. Effectively, the Australian retailers will be competing with a company that has much more money and also the ability to drive prices down for a longer period.[15] It is a very tricky issue to go into a price war with Amazon. At the same time, deep pockets are required to stay in the game.
In this way the online retail giant Amazon will going to have a major impact on the retailers in Australia. These impacts will be positive and also negative.. However, the company will be required to change its terms and conditions in order to deal with the impact of contract and tort law in Australia.
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Gordon, Wendy J, ‘Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives’ in Neil Netanel and Niva Elkin-Koren (eds) The Commodification of Information: Social, Political, and Cultural Ramifications (Kluwer International).
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