Identify the legal and Policy issues in Complex Contractual Cases and Hypothetical Situations.
The present case is based on the provision of the contract law that is dealing with the contractual relationship made between two or more parties and prescribes certain rights regarding the same[1]. In Australia, the contract law is consists of certain terms of the contract. There are provisions on the collateral contracts and certain principles are also depicted under the Act[2]. The present case is based on the terms of the contract. In the present case, there has been a provision regarding the implied terms of a contractual agreement that was made between the Con Stan Industries v. Norwich Winterthur Insurance (1986) 160 CLR 226 regarding an insurance policy. Certain disputes between the two have been cropped up and it became necessary for the right interpretation of the grounds of the Contract Act. There are provision regarding the relevant topics of the contract Act and the decisions of the High Court have been discussed. The method of classical understanding has also been discussed under the case study. An attempt has been made regarding the proper functioning of the provisions of the law has been briefly discussed.
Terms of the contract:
The case regarding the Con-Stan Industries has been raised in the year 1986, which was filed before the High Court in Australia. The facts of the case are that Con Stan industries appointed a broker who will be looked after the insurance policy taken by the company. On suggestion of the broker, the company had taken certain insurance policies from one Norwich and an agreement regarding the insurance contract had been made in between the parties. The agreement was consist of certain express and implied terms that were to be consented by both the parties. The dispute cropped up when the broker did not pay the amount that are given by Con Stan and went on liquidation. The insurance company filed a case before the Court of law and claimed the due amount from the company. The company argued that they had already paid the amount to the broker and the broker had failed to pay the amount to the insurance company. Con Stan had also contended that there was an implied terms of contract where there was mentioned that the company can pay the amount to the broker and they are not liable to pay any additional amount to the insurance company[3].
Therefore, in this case, the term implied contract has been stated. There are two types of contractual terms present in the agreement. The terms that are expressly mentioned in the agreement are known as express terms and the conditions that are not mentioned expressly is known as implied contract. The implied terms are existed in the agreement with the consent of both the parties of the said agreement or contract. There are certain other criteria for the implied terms[4]. If an agreement are of special types and the law itself mentioned certain rules regarding the terms to be regarded as implied, the conditions will become implied in nature. In case of the implied terms that are based on the consent of the parties must fulfil certain provision to become implied[5]. The provisions are as follows:
It is mentioned under the Australian contract Act that the court can regarded any term as implied by way of four steps, such as by law, based on the facts, by custom and by maintaining the statutes[6]. However, if there is a leaning mentality of the contractual parties regarding the avoidance regarding the terms is observed, the terms will not be regarded as implied terms. It has been observed from the essentials of the contract that the implied terms should not be contradicted the express terms of the contract[7].
Therefore, from the discussion, the court’s decision regarding the nature of the implied terms has been stated clearly. The legal implications terms are denote those terms that are generated automatically under the agreement. It is of particular types that are to be included under agreement and in this case, the intention of the parties is of less important. The terms are based on the legal principles that are to be followed up by the parties. An instance to the rule can be that the product should not be defective when the same is being sold out. In Byrne v. Australian Airlines (1995) 185 CLR 411, the essentials of the legal implied terms are to be mentioned by the respective court of law.
In certain circumstances, some factual terms are to be mentioned under the contract. These are stated as the factual terms. In this case, the intention of the parties is to be presumed. Certain formalities are to be followed up here in this case. The reasonable grounds of the terms, clarity regarding the issues of the contract and the contradiction, if any, with the express terms are to be regarded as the suitable things relating to these criteria[8].
In Australian Consumer Law, there are certain criteria present regarding the statute based contract terms[9]. These terms are usually provides certain guarantees regarding the contract that discloses the purpose of the contract and give reasonable time to the parties in general.
The High Court has pleased to set aside the plea of the Con Stan company regarding their contention of implied contract terms made between the company and the insurance company[10]. It was decided by the court that the contractual agreement is not comprised of certain implied terms that are not allowed by law. There have no customary rules or the consent by the parties regarding the matter that the company will pay the insurance debt to the broke4r and the broker will be liable to pay the same to the insurance company. Therefore, there is a clear vision that the brokers are not responsible for the payment and the parties are also did not express their intention to this effect. The conditions relating to the implied terms are concocted by the Con Stan Company, and thereby rejected by the competent court of Law.
It was also held by the court that the implied terms are not even secure the business efficacy regarding the contract and consent of the parties are also not clarified by the terms. It was contended by the Con Stan Company that the terms are customary in nature but there is no provision under the customary rule that can held the broker liable only for the payment of the debt. Therefore, it can be stated that the rulings of the High Court regarding the issue is correct[11].
There are certain other issues present regarding the current topic. Contract law has neither a total enlightening hypothesis, clarifying what the law is, nor a finish regularizing hypothesis, clarifying what the law ought to be. These holes are obvious given the conventional meaning of agreement as grasping all guarantees that the law will uphold. Indeed, even a hypothesis of agreement law that spotlights just on the implementation of deals should at present consider the whole continuum from standard shape contracts amongst firms and purchasers to business contracts between business firms[12]. No expressive hypothesis has yet clarified a law of agreement that fathoms such a wide space. Standardizing speculations that are grounded in a solitary standard – such as self-sufficiency or effectiveness – additionally have foundered over the heterogeneity of legally binding settings to which the hypothesis is to apply. Pluralist speculations endeavour to react to the trouble that unitary. Normative hypotheses posture by asking courts to seek after effectiveness, reasonableness, great confidence and the security of individual self-rule. Such hypotheses require, however so far do not have, a meta rule that tells which of these objectives ought to be definitive when they conflict. We endeavour to gain ground here with a more unobtrusive approach – to set out and protect a standardizing hypothesis to control decision makers in the direction of business contracts.
There is an accord among courts and analysts that the fitting objective of agreement elucidation should have the upholding court locate the “right answer”. The “right answer” is the answer for a contracting issue that the gatherings planned to sanction. Goal, in any case, is decided unbiased and tentatively: a gathering is interpreted as meaning what its agreement accomplice could conceivably trust it implied when the gatherings contracted. There are two legitimizations for the objective of finding the right answer. The principal takes after from an independence-based perspective of agreement law. This avocation holds that the activity of state intimidation against a man must be defended. An adequate avocation is that the court is making the individual do what he had consented to do. Hence, the court must discover exactly what the individual had consented to do. The second defence is steady with a productivity-based perspective of agreement law[13]. On this view, parties contract to expand the surplus that their arrangement can make. This objective is unattainable if courts neglect to implement the gatherings’ answer yet rather force some other arrangement. Along these lines, the court must find out the arrangement that the gatherings really embraced. There is a question in the writing whether the standards that courts utilize when endeavouring to locate the right answer are compulsory in the formal sense, yet there is an accord that the standards are troublesome for gatherings to escape.
In our view, the present accord asks the wrong inquiry. A pledge to party power with respect to the agreement’s substantive terms suggests the further responsibility regarding party sway with respect to the interpretive style an adjudicator should use to locate the substantive terms. Gathering inclinations in regards to legal interpretive styles can vary. In this manner, interpretive styles ought to be defaults. The significant inquiry, at that point, is the thing that ought to be the majoritarian default. Put another way, the issue is not what interpretive style is best figured to yield the right answer; Or maybe, the issue is the thing that interpretive style would common gatherings need courts to utilize while endeavouring to locate the right answer. We will contend here that the majoritarian default is Williston and regular firms lean toward courts to make understandings on a restricted evidentiary base whose generally noteworthy part is the composed contract. This proposed default would switch the UCC’s interpretive standards to the degree that they are defaults; the proposition is more radical still if the Code’s tenets are compulsory.
Conclusion:
Therefore, it is concluded in this context that the High Court’s reasoning in Con-Stan Case is to promote the role of contract law rather to present an alternative explanation. There are certain provisions regarding the implied methods are discussed in this case. Certain case laws that are pre-decide the facts of the implied contracts are to be laid down here. The decision of the High Court has also been discussed critically and it is decided that the adjudication of High Court is correct as against Con Stan Company
References:
Bellamy, Richard, ed. Constitutionalism and democracy. Routledge, 2017.
Carter, John W., David J. Harland, and Kevin E. Lindgren. Contract law in Australia. MICHIE, 2016.
Corones, Stephen G. Competition law in Australia. Thomson Reuters Australia, Limited, 2014.
Freedland, Mark, et al., eds. The contract of employment. Oxford University Press, 2016.
Huang, Wei, et al. “Compact thermal modeling for temperature-aware design.” Proceedings of the 41st annual Design Automation Conference. ACM, 2004.
Jarzabek, Stan, and Riri Huang. “The case for user-centered CASE tools.” Communications of the ACM 41.8 (2014): 93-99.
Keohane, Nannerl O. Philosophy and the State in France: the Renaissance to the Enlightenment. Princeton University Press, 2017.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Pearson, Gail. “Further challenges for Australian consumer law.” Consumer Law and Socioeconomic Development. Springer, Cham, 2017. 287-305.
Richardson, Sue, Laurence Lester, and Guangyu Zhang. “Are casual and contract terms of employment hazardous for mental health in Australia?.” Journal of Industrial Relations 54.5 (2012): 557-578.
Ross, Charles. Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare. Routledge, 2017.
Shields, Kirril Robert. “Perpetrators, bystanders, and victims: Representations of the Third Reich in Australian fiction.” (2014).
Thampapillai, Dilan. “THE AUSTRALIAN CONSUMER LAW.” Australian Commercial Law (2015): 374.
Ye, Pengfei, et al. “A case study of variation mechanism in an industrial product line.” Formal Foundations of Reuse and Domain Engineering (2014): 126-136.
Zeithaml, Valarie A., Anathanarayanan Parasuraman, and Leonard L. Berry. Delivering quality service: Balancing customer perceptions and expectations. Simon and Schuster, 2013.
Carter, John W., David J. Harland, and Kevin E. Lindgren. Contract law in Australia. MICHIE, 2016.
McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
Richardson, Sue, Laurence Lester, and Guangyu Zhang. “Are casual and contract terms of employment hazardous for mental health in Australia?.” Journal of Industrial Relations 54.5 (2012): 557-578.
Huang, Wei, et al. “Compact thermal modeling for temperature-aware design.” Proceedings of the 41st annual Design Automation Conference. ACM, 2004.
Jarzabek, Stan, and Riri Huang. “The case for user-centered CASE tools.” Communications of the ACM 41.8 (2014): 93-99
Ye, Pengfei, et al. “A case study of variation mechanism in an industrial product line.” Formal Foundations of Reuse and Domain Engineering (2014): 126-136.
Thampapillai, Dilan. “THE AUSTRALIAN CONSUMER LAW.” Australian Commercial Law (2015): 374.Ross, Charles. Elizabethan Literature and the Law of Fraudulent Conveyance: Sidney, Spenser, and Shakespeare. Routledge, 2017
Corones, Stephen G. Competition law in Australia. Thomson Reuters Australia, Limited, 2014.
Keohane, Nannerl O. Philosophy and the State in France: the Renaissance to the Enlightenment. Princeton University Press, 2017.
ellamy, Richard, ed. Constitutionalism and democracy. Routledge, 2017
Shields, Kirril Robert. “Perpetrators, bystanders, and victims: Representations of the Third Reich in Australian fiction.” (2014)
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