Discuss about the Business Law for Applied Paramedic Law and Ethics.
This essay discusses about the implied term in a contract. For the explanation of this term different cases are discussed for better understanding about the implied terms in a contract.
In this case, West had parked his car in a parking council and entered into a contract by get a proper parking ticket from this council. On the back of this ticket it was stated that the parking council will not be liable for any damages and losses related to car. In this ticket, it is also stated that before taking delivery of the car this ticket must be presented. A thief get West’s car by bluffing the employee of car parking by showing a duplicate ticket. Therefore, West sued on that parking council and claimed for return a car or its value in court.
In the above case, contract made between a car parking council and West is legally enforceable by law and included implied terms. In this kind of contract, written format of contract is not necessary to make contract enforceable between parties.[1] According to Australian contract law, in a contract implied, terms may be of two types like ‘implied in fact contracts’ and ‘implied in law contracts’. The ‘implied in fact contracts’ are based on facts of a circumstance and in ‘implied in law contracts’ one party has the right of compensation for the services provided from other party even if both parties have not any consideration at the time of contract made.[2] If in a contract, any implied term is available than the guarantee is automatically provided by law and the plaintiff may claim for compensation in court from defendant.
As same in case of Astley V Austrust Limited (2000), Astley is as senior partner of Solicitor firm and working for Austrust as a legal advisor.[3] Astley was negligent for the legal provision of this trust. Austrust decided to start a new business venture as a trustee. He compromised and become trustee of this business venture and Astley become a retainer to examine the deed of trust. After some time this trust become failed and wounded up with extensive liabilities and trust’s assets value. Austrust sued for breach of contract against retainer and claimed in court for relevant losses. In this case, the duty to take care of trust is an implied term for retainers. But court concluded that in this case implied terms are included but here both parties are in negligence and the case was dismissed by law.
In case of Sydney City Council V West, it is the liability of car parking council to provide security to its customer’s car and known as an implied term in a contract. Therefore, West can sue for claim in court and the car parking council is legally bounded to pay the cost of car.
In this case, Thornton as a plaintiff entered into a contract with Shoe Lane Parking Ltd and received a parking ticket from machine. The terms and conditions related to these services are contained on a notice board which was placed near machine. The customers who use the services and take a ticket are bounded by these terms. According to these terms the owner of the car is responsible for any damage related to car. The offer provided by Lane parking was accepted by Thornton and ticket bought from this electronic machine. The words printed on ticket cannot be altered because the contract was already made when ticket bought by Thornton. The plaintiff suffered from personal injury due to fault of defendant. But the defendant deprived that it is not his liability according to displayed clause on notice board near machine.
According to law, the implied term in a contract will be voidable if the facts are not reasonable and equitable from both parties.[4] An implied contract will be enforceable by low if the parties are capable to express the terms of the contract. The theory of this law is that “No customer in a thousand ever read the conditions. If he had stopped to do so, he would have missed the train or the boat.”
As well as, in case of Codelfa Construction Ltd V State Rail Authority of NSW (1982), the railway authority gave a tender to Codelfa of tunnel excavate for railway line.[5] The contract was provided to complete all works in 130 weeks. In this contract, Codelfa commenced to work in three shifts in a day and in seven days of a week. Due to vibrant and noisy work local residents and council injected work. Therefore, the work of Codelfa was reduced by this granted injunction and the company started six day working in two shifts of a day. In contract it was a common assumption that the work will not be issue of injunction. So, Codelfa claimed for additional amount from Railway authority for the recovery of lost profits and additional costs which is not being able to work seven days in a week. The court observed that there was not an implied terms in the contract because in an implied contract it is necessary to give efficacy for a valid implied term in contract.[6] In this contract, there was an implied term if the work was restricted by injunction of Railway authority. The contract between these parties is made in written form and accepted by the plaintiff the offer of defendant. In this case, the majority is considered as frustration and the injunction from regional authorities was fundamentally different therefore the sued by Codelfa was voidable by court.
From the above discussion it can be analyzed that in case of Thornton V Shoe Lane Parking Ltd, Thornton would not be able to successfully sue for the claim of damages of his car. Because the contract made between Thornton and Shoe Lane parking have not included any clear expression which was reasonable and equitable for both parties. Moreover, the offer was at the notice board at entrance and accepted by Thornton when he entered with a proper ticket to move this car for parking. In this case, there is no any implied term therefore the appeal of Thornton is dismissed by court.
From the above discussion it is analyzed that there are some similarities and differences between both cases. In case of Sydney car parking council and west, the offer was accepted by plaintiff with proper written mutual obligation and competency as well as in case of Thornton and Shoe Lane Parking Ltd. The contract was made in written form with appropriate consideration between both parties in these cases. In these cases both Parking stations was also not liable for any damage of car. On the other hand, differences between these cases are that in case of Sydney Car Council Parking V West, the terms and conditions related to security generated at the time of ticket issued and accepted by West. But in case Of Thornton V Shoe Lane Parking Ltd all the terms and conditions are displayed on random pillars. Thornton accepts these conditions before he brought ticket for parking. According to law, when the offer is accepted after then new conditions cannot be included in the contract.[7] Therefore, in this case the contract not includes any implied terms because the conditions are brought after the offer accepted by Thornton which are not part of the contract. But in case of Sydney City Car Parking V West, all the terms and conditions are brought at the time of ticket issued. Therefore, in this case contract includes some implied terms and the Car Parking Council is liable for any damage of car. In this case, West has the authority to get claim of his lost car from car council but in case of Thornton V Shoe Lane Parking Ltd Thornton accepts the all term and conditions before ticket issued by machine and the terms printed on back of the ticket are not part of contract. Therefore, legally Thornton cannot get any claim from Car parking station or Shoe Lane Parking Ltd is not liable for the damage of car.
Conclusion:
From the above discussion it can be concluded that consumer guarantees will automatically apply of any extended warranty by the service provider. According to Australian consumer law the service provider to consumers must comply for consumer guarantees. If the service provider fails to comply of guarantee in relation to a description applied on the service on behalf of service provider or implied consent of the service provider than the service provider will be liable to indemnify the loss of the customer. In the case of Sydney City Council V West, the council was the service provider and liable for any damage of consumer’s car because according to Australian consumer law, it was the liability of service provider to provide better services to its customers with security. But in case of Thornton V Shoe Lane Parking Ltd, the service provider was not liable for any damage because the customer accepted all conditions before getting service from the service provider.
References:
Backer, Rechard, Implied Terms in English Contract Law (Edward Elgar Publishing, 2011).
Spark, Gareth, Vitiation of Contracts (Cambridge University Press, 2013).
Robert, Mac, MacRoberts on Scottish Construction Contracts (John Wiley & Sons, 2014).
Linas, Fabien, Trade Usages and Implied Terms in the Age of Arbitration (Oxford University Press, 2016).
James, Spigelman, “Contractual Interpretation: A Comparative Perspective (2011) 85(5).”Australian Law Journal 412.
Dimatteo, Larry, et al, Commercial Contract Law: Transatlantic Perspectives (Cambridge University Press, 2013).
Townsend, Ruth and Luck, Morgan, Applied Paramedic Law and Ethics: Australia and New Zealand (Elsevier Health Sciences, 2012).
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