The case was heard by ‘The Supreme Court of Victoria’ as it had the jurisdiction to adjudicate upon the said case.
The case was heard by Hon’ble Judge Dodds-Streeton.
Dodds-Streeton was the Hon’ble Judge who adjudicated upon the said case. Her objective was to decide the said case after its proper adjudication and by making sure the all the witnesses were properly examined and proper evidence of the witnesses was recorded. Also, there must not be any kind of flaw in the procedure of recording evidence and the examination of the witnesses as the same was the basis upon which the decision was to be given by the Hon’ble Judge.
When no heed is granted to the medium of publication and the decision of the court is quoted so that reference can be made to any of the judgement, then, it is called Medium Neutral Citation. It does not make any difference whether the judgment is either in printed form or is posted in electronic form, but, now, the use of Medium Neutral Citation is normally found to be used by most of the courts and the tribunals. However, a Medium Neutral Citation does not comprise of a volume number or the use of the court abbreviation. But, normally, the citation comprises of the year of publication of the case, then the designator of the case and then the sequential number. After the sequential number, the paragraph number of the case of posted iof specific reference is made to the same.
Thus, now, if there is a need to find any citation, then, it is now important to look for the database to locate the citation, but, by the coming of Medium Neutral Citation, it is enough to resolve the need.
Now, the law journals, reports, etc are also giving authenticity to the use of Medium Neutral Citation along with the courts and the tribunals. When a Medium Neutral Citation is used in law journals, then, the name of the parties is printed first, then the year of publication along with the unique court identifier number. After that the abbreviation of the court must be used along with the sequential number and followed by the judgment number.
When the Medium Neutral Citation is used for reported cases then ibid can be used.
Thus, Medium Neutral Citation is now a very common parlance that is acquired in all form of primary and secondary sources. (Flinders, 2017)
A contract is the combination of offer, acceptance, consideration, capacity and intention of the parties. When a contract is made then it can be either a unilateral contract or it can be a bilateral contract. (Caffrey, 1991)
It is now important to understand the scope of a unilateral contract.
When an offer is made by the offeror then it must be accepted by the offeree in order to make a binding contract amid the two. The offer and acceptance is complete when they are communicated to the parties, that is, they are brought in the knowledge of the parties. Now, in unilateral contracts, the offer is made by the offeror and the same is accepted by the offeree. But, when the acceptance is made by the offeree then he does not communicates his acceptance to an offeror. The communication of the acceptance is considered to be valid and complete when the offeree carry out the mode of acceptance that is prescribed by the offeror, normally, is considered to be the conduct of the offeree (Errington v Errington, [1952] ). By carrying out the desired conduct as expected by the offeror, the offeree accepts the offer made to him. The offer in this case has inbuilt term by acting upon which or by conduct of an offeree the offeree accepts the offer. For example, if a police offers gave award to a person who gives certain information and acting upon the same if any person provides such information to the police, then, he had accepted the unilateral offer made by police. (Salzedy & Brunne, 2004)
The renowned case in the history of contract that is based on the concept of unilateral offer is (Carlill v Carbolic Smoke Ball Company , [1892])
In the provided case, the Carbolic Smoke Ball Company advertised that in case anybody who takes the ball manufactured by the company and uses the same as per the directions of its use and that after the use if such person suffers from influenza, then, the Carbolic Smoke Ball Company will pay the sufferer a reward of £100. The company further to authenticate its promises has deposited a sum of £1000 in the Alliance Bank. The deposit is made to show that the company is genuine and honest while making the promise.
Mrs. Carlill filed a claim with Carbolic Smoke Ball Company, but the company objected with the reasoning that it was invitation to treat and not an offer which it had advertised. The main argument of Mrs. Carlill was that she had suffered even after the use of the balls and thus she is rightful in claiming the reward. She argued that the advertisement is an offer and compliance of the terms of the offer is nothing but an acceptance from her side.
In this case the Hon’ble court held that advertisement by the company is not an invitation to treat but a unilateral contract. An offer is made along with the specifications through which an acceptance can be made and is held to be valid. The deposition of money further clarified that there is no sales puff by the Carbolic Smoke Ball Company. In case of offers to public at large anybody can accept the offer by acting upon the same and there is a concluded contract upon acting upon the terms of public offer i.e. unilateral contract. (Poole, 2016)
The leading case of (Carlill v Carbolic Smoke Ball Company , [1892]) is based in United Kingdom, but, in Australia some of the cases that has defined the concept of Unilateral contract are (Daulia Ltd v Four Millbank Nominees Ltd, [1978] ) and (Mobil Oil Australia v Wellcome International, [1998] ).
While adjudicating upon case of (Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd , [2006] ), the Hon’ble judge i.e. Dodds-Stretton J found that the witnesses produced by and the evidences lead by Mr. Blancato was more trust worthy and reliable as compared to the witnesses produced by and the evidences lead by Mr. Janssen which seemed to be contradictory and variable.
The main significance of considering the evidences of Mr. Blancato as more reliable and was appreciated by the Hon’ble court because Mr. Blancato provided the proof of the address and hence proved the facts properly. Moreover he also admitted that BISG was given the chance to buy the machinery worth $1 but the same does not include the machinery being sold to Canon. Also the offer made does not include only few variants as there were high quality coloured/black and white photocopiers. It was further submitted that the condition is applicable and relevant only provided there is a presence of rental agreement or the customer is no dire need of the machinery, which ever happens later in stage.
The decision in the leading case of (Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd , [2006] ), was that no evidence were laid down which can establish that it was the plaintiff who has retained the machinery which is claimed by the defendants. Also, no proofs were established that a unilateral offer is made by the defendants. The defendant is of the view that the CFA machines are in the possession of the plaintiffs, however, no authentic proofs were submitted which establishes the claims of the defendants. Also the rental agreement which is formed along with CFA comprises of a customary entry and is validly established by the plaintiff. The court decided that no kind of injunctive or declaratory relied can be provided to the plaintiff and thus the case is dismissed against the plaintiff and is found in favour the defendants.
In the leading case of (Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd , [2006] ), the main claim that are raised by the plaintiff are that a unilateral offer is made by the defendants ad they are the first customers to reach upon such offers and thus there is a valid contract that made amid them and the CFA. Since the contract is established amid the Plaintiff and the defendant, thus, they are permitted to purchase the Copiers at $1. Not only this, the plaintiff are also now permitted to purchase the machines in the area specified specifically after the rental agreement is established amid the parties. The plaintiff also claimed that he is authorised to buy the machinery after the cessation of the dealership. This power to buy the products at $ 1 is still prevalent after the cessation of the dealership berceuse this power is granted to the plaintiff in the contract that is established amid the parties and the power is an implied term which cannot be negated. The plaintiff also contended that much labour and pain is sustained by the him as he brought variations in his business practices so as to gave support to the CFA that is established amid the parties and this reward must be provided for his hard work. It was contended by the plaintiff that the defendant has violated the terms of the agreement that is established amid the two and thus Plaintiff is entitled to his valid claims.
There are various arguments that are laid down by the plaintiff in order to support his claim but the claim of the plaintiff was not found in his favour because there was no proof that was laid down by the plaintiff which can establish that the defendant has made any kind of unilateral contract with the plaintiffs. There were few grounds that are laid down in (Vroon BV v Foster’s Brewing Group Ltd , [1994]. ) but nothing relevant is furnished by the plaintiff which comply with the ground so laid, rather, the claim is only based on the principle of completeness and nothing else. It was submitted that in the conference, the defendant has made an offer which is validly accepted by the plaintiff, but, this claim of the plaintiff is not supported by any valid evidences. No communications and conducts amid the plaintiff and the defendant can establish that they were intending to form any kind of contract mid themselves.
Thus, these are the basic reasons which results in the failure of the claim of the plaintiff.
The plaintiff has filed an appeal to the decision.
The brief analysis of (Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd , [2006] ) establishes that the decision of the court is valid because; firstly, the evidence which the plaintiff has established to supports his claim is not consistent and was found to be non-reliable; secondly, the offer that is made by the defendant is not a unilateral offer; thirdly, the communication that took place in the conference is totally vague and uncertain; Fourthly, the claims that are made by the plaintiff regarding the machinery and the equipment has no basis as no proof is provided by the plaintiff; fifthly, all the witness that are provided has no authenticity in their statements.
Thus, these are some of the reasons which establishes that the decision is current and valid.
“It is commonly accepted by lawyers that the adversarial system designed to resolve disputes is an inefficient system. Alternative dispute resolution is a far better system”.
In order understand the inefficiency of adversarial system it is important to understand its concept first. In Adversarial justice system, the parties who are aggrieved present their case in an appropriate court of law. The parties represent themselves through the advocates appointed by them. Both the parties appoint their respective advocates and present their claim and defenses respectively. The matter is adjudicated by the Hon’ble court by following the due process of law. The parties lead their evidences and bring their witnesses to prove their case and the Hon’ble court decides the matter in favor of party by analyzing the evidences and witnesses lead by the them and thus concluded its decision. (Laster & Taylor, 1994)
The reasons as to why this system is not preferred are because the process of courts is confusing, complex and very inflexible. The court process is too lengthy and matters go on for years. The cost incurred on the part of parties and on part of government is burdensome. In case of one of the parties in dispute is a government party then the government witnesses called to depose in court under the pressure of government and thus will depose in favour of government which in turn affects the outcome of the case and affects the fairness of trial. The courts run from the funding given by the government and thus the disputes are decided in many years and in turn cause more financial burden on government machinery. Due to the benefits associated with the Adversarial justice system various tribunals were also established but due to the cost, time, overburden of work and change of technology, culture and various new laws these tribunals also did not proved to be effective as due to the emerging complexities. (Caenegem, (1999))
Due to the shortcomings of the Adversarial system the government set up another mechanism to resolve the dispute i.e. Alternative Dispute Resolution (ADR).
The basic reason for the establishment of ADR is to give people an effective dispute resolution system that is less time and money consuming for both litigants and the government. The various ADR techniques that are available to parties are mediation, arbitration and conciliation, etc. ADR is independent from courts. The basic advantages of ADR are that disputes are resolved quickly, it is cost effective. (Khan, 2006)
Some countries prefer ADR system while other are not in favor of it, for instance, Australia is in its favor but USA is against it. Though ADR is popular in countries but not that much that parties prefer it more than courts. ADR system is preferred by parties when they want quick disposal of disputes at low cost. But, some countries consider ADR as threat to courts but this system is in turn beneficial for courts as it reduces the burden of courts. There are many factors which in turn establish that inspite of deficiencies in the adversarial system then also it cannot be abolished and is in turn preferred over the ADR.
The constitution of Australia embeds in it the notion of judicial system and it power as being important part of the government. With the development and progress within the society the importance of judicial system and courts is increasing day by day and a proper judicial setup and system is required by public in coming years. In Australia there is concept of separation of powers and the courts play important part in this country as being important pillar of the system within Australia. The rule of law can be effectively maintained by adversarial system. The commercial transactions and the economic activities within economy are protected with adversarial system within the country. The reforms are being made and are tried to be incorporated in the adversarial system to make it better and to improve its effectiveness.
As both the ADR system and adversarial system are sovereign from each other but the Australian system is truing its level best to bring harmony and coalition between the two systems so that the disputes are resolved within short span of time. (Mason, 1999)
In order to make ADR system effective it is necessary that the courts must have a proper framework which is not possible without accepting and working with the adversarial system. As both the ADR system and adversarial system complement each other and both must coexist in order to provide an effective mechanism for dispute resolution for public at large.
Does Penny and Bastian have a valid contract among themselves?
An Agreement is said to exist between the parties when there is a valid offer made by one (offeror) and the same is accepted by the person to whom it is made (Offeree). But for an agreement to be converted in a contract there must be presence of meeting of minds of parties plus the parties must be of sound mind and major and there is the presence of consideration in exchange of promise. (Caffrey, 1991)
An offer is an intention of the offeror which is communicated to an offeree and the offeree when assents to such intention of the offeror then the acceptance is said to be occluded and is held in (R v Clarke , (1927)). If the offeree puts his own terms while accepting the offer then the same is counter offer. On coming of counter offer into play, the original offer comes to an end and cannot be accepted. The only offer which now can be accepted is the counter offer and is held in (Hyde v Wrench , [1840])
Also, when any statement is made through advertisements, auctions etc are then they are not offer rather they are an invitation to treat. The inviter invites offers upon such advertisement and the invitee can make their offer and upon making offer it depends upon the inviter or the advertiser to accepts or reject the same. If the inviter accepts the offer then there is a contract between them and is held in (Partridge v Crittenden , [1968]). (Sangha, (1998) )
Penny advertised for selling of textbooks for $ 90 and Bastian is ready to purchase them for $ 60.
In the given case, there is not an offer by Penny rather it is an invitation to treat (Partridge v Crittenden). Against the invitation an offer is made by Bastian. Bastian made an offer to purchase the books for $ 60.
But, Penny did not assent. So, the offer was not accepted. Thus, there was no contract between the two.
It can be thus concluded that there is no valid contract between Penny and Bastian as there was no acceptance to the offer of Bastian by Penny in the instant case. So Bastian will not be able to get anything even if he approaches the court against Penny.
Does the service provider have any right against Peter’s parents or Peter?
As per Australian law, a contract is formed between the parties when there is an offer and the same is validly accepted. But an offer and its acceptance only brings into existence an agreement. In order to make a contract there should be valid consideration, capacity of the contracting parties and intention of the contracting parties to be in legal relation and to bind themselves with the terms that they agree upon. (Caffrey, 1991)
If any of the party to a contract is not major or not of sound mind then they cannot be a part of a contract unless the contract is for their benefit. The parties are said to be major when they had attained the majority i.e. when they are 18 years of age. Under the common law also the contracts with minors are not considered valid. A Contract that is formed between the parties who have not attained the age of 18 is voidable unless the same is for the necessity of the minor. A contract by a minor for his necessity is valid and is held in (Nash v Inman , [1908]) ) but in general the contracts entered with minors are voidable in nature. Also, the contracts for employment entered into between by a minor are also valid and can be enforced as per law.
Peter is a minor as he is of 14 years of age. Thus, legally he is not authorized to enter into any kind of contractual relationship. In order to be capable to enter into a contract the parties must be major and of sound mind. So being a minor Peter cannot be a part of a contract.
However, Peter can make a contract provided the contract is for his necessity or for his employment.
Now, Peter called up the internet service provider and asked for a super fast net. The contract which he formulated with the service provider was for $69.99 per month for a period of 24 months. The payment for the same was made to the service provider.
The contract had been formulated between Peter and the service provider and the money was also paid, hence, there would had been a valid contract but as Peter was minor and he had not attained the majority age i.e. 18 (as he was only 14), so, there is not a valid contract between two and is voidable at the option of Peter though all the other ingredients offer, acceptance, consideration, intention to be in legal relation are present. But the capacity of parties which must be there is not present and hence the contract is not valid because of absence of capacity of the parties.
If the contract would had been for the benefit and necessity of the Peter (minor), then, it would had been a valid contract and thus the same could not had been avoided by minor also. As per the facts given, it is not stated that the net was necessity for minor or for his necessity or for his employment. It is thus assumed that there is no necessity that is present and thus the contract between the service provider and Peter is not valid.
In case the contract is not cancelled by Peter during his necessity then also the contract needs to be ratified by Peter upon attaining his majority in order to make it a valid contract.
Conclusion
It can be thus concluded that the contract between Peter and the service provider is not a valid contract and thus voidable as Peter is not be capable of contracting as being on 14 years of age. So service provider can avail his rights against Peter when he ratifies the contract on becoming major otherwise not.
References
Caenegem, W. ((1999)). Advantages and disadvantages of the adversarial system in criminal proceedings’. . Law Faculty Publications. Paper 224.
Caffrey, B. (1991). Guidebook to Contract Law in Australia. Australia: CCH Australia.
Carlill v Carbolic Smoke Ball Company ([1892]).
Daulia Ltd v Four Millbank Nominees Ltd (2 All ER 557 [1978] ).
Errington v Errington, 1 KB 290 ([1952] ).
Flinders. (2017). Medium Neutral Citation. Retrieved April 24th, 2107, from Flinders Search Smart: https://www.flinders.edu.au/library/fms/law/Medium%20neutral%20citations1.pdf
Hyde v Wrench ([1840]).
Khan, S. (2006). Lok Adalat: An Effective Alternative Dispute Resolution Mechanism. APH Publishing.
Laster, K., & Taylor, V. (1994). Interpreters and the Legal System. Federation Press.
Mason, H. S. (1999). The future of Adversarial System. Retrieved April 24, 2017, from https://www.austlii.edu.au/au/journals/NSWBarAssocNews/1999/4.pdf
Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd , VSC 42 (16 February 2006 [2006] ).
Mobil Oil Australia v Wellcome International (FCA 205 [1998] ).
Nash v Inman ([1908]) ).
Partridge v Crittenden ([1968]).
Poole, J. (2016). Casebook on Contract Law. Oxford University Press.
R v Clarke ((1927)).
Salzedy, S., & Brunne, P. (2004). Briefcase on Contract Law. Routledge.
Sangha, M. &. ((1998) ). Acceptance and Unilateral Contracts . Retrieved April 24, 2017, from https://netk.net.au/Contract/03Acceptance.asp
Vroon BV v Foster’s Brewing Group Ltd ([1994]. ).
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