The present question is based on certain theories of law that governs the tribal law. Almost in every legal system, a constitution governs the provision of the law (Baudrillard, 2016). The constitution is regulated by certain norms that help to retain the flexibility of the constitution. The nature of the legal system of the present case is primitive. In the legal system of a primitive society, there is no existence of the government. The process of amendment regarding any rule is very rare and the application of the rules is rigid in nature (Glenn, 2014). Tribal culture is an instance of the primitive society. In case of the tribal society, certain primary obligation has to follow and the major parts of the tribes are abided by the rules. In case of the tribes, as there is no state government for the implication of the law, certain uncertainty cropped up regarding the same (Gordon, 2014).
It is a fact that the rules or the norms are helpful to maintain discipline among the society. In this case, it has been observed that the tribe has a constitution and the people of the tribe follow all the rules properly. It has also observed that certain people came to join the group without knowing the objective of the rules of the constitution. In a tribe, it is expected to maintain the same rules of the constitution (Jones, Frohwirth, & Blades, 2016).
It is required that the process law should be positive in nature and must be common. In the legal system of Australia, the approach of Prof. Hart is applicable as both the principles are followed the secondary rule of law. According to the concept of Professor H.L.A. Hart, it is important to abide by the rules of law to maintain a systematic formula in the society. In a society, there should not any rigidness regarding the rules of law (Shahani, Chandra & Al-Haddad, 2015). It is important to introduce the new member to the constitutional rules. There should not be any uncertainty regarding the norms and if there is a necessity to change the provision of law, it could be done with close observation and decay. Prof. Hart believed that to avoid the ambiguity every member of the society should follow the same principle of law. In this case, it is important to let them know about the applicability of the provisions of constitution by verbally.
The word legal system means the process of implementation of law. The legal system of a country is to reflect the legal ideology that is maintained by the lawmaker and the country’s constitution (Lamond, 2014). In Australia the legal system are mainly based on the common law provision. Distinguishing system of Australia is divided into 6 states and the Federal rules are applicable in the society of Australia. In Australia, there are 6 states and its States hold their self- governing rights constitutions parliaments and laws. The common law rules applicable in the territories of Australia. The parliamentary system of Australia is bicameral in nature (McKendrick, 2014).
Regarding the present case, it can be stated that the adversarial system is the main obstacle in front of the effective business operation. In this system, special classes of jury are engaged to apply their common sense from the various perspectives for the adjudication of disputes. As in the adversarial system the whole processing based on the common sense of the Jury, there is a difference of opinion has been observed in this process (Painter & Holmes, 2015).
In Australia the secondary rules governing the legal system and also regulate the provisions of the Constitution of Australia. The common law system is adopting to avoid the confliction between the element and the other Court of law. Under the legal system of Australia the concept of Professor H.L.A. Hart has been ruled out. The legal system of Australia can be divided into 3 parts such as legislature executive and judiciary. A division of power can be seen within the Australian legal system (Rembar, 2015).
In Professor Hart’s legal theory, FB society has certain primary rules of obligation and the same should be maintained or abide by all the citizens of the members of the society as a whole (Ross & White, 2014). During the maintenance of the rules of the society certain problems are cropped up. Professor Hart has taken an initiative to deal with the problems and he had mentioned the three path legal system to avoid the problems in general. In professor Hart’s 3 part legal system, certain rules are engraved. The rules can be as follows-
According to the research done by professor Hart, it has been observed that the problems regarding the maintenance of rules are basically divided into three parts (Schauer, 2015). They are uncertainty that is lack of systematic approach, static that is slow growth regarding the modification of rules and Saturn in efficiency regarding the dispute resolution. In his three part legal system, he had pointed out the loopholes of the legal system and give effort to solve the problems (Shams, 2016).
According to professor Hart, in a society there are two scopes present regarding the existence of legal system. First, every person of a street food abide by the principle of law and the second, the state officials have certain more things to do in lieu of obey the rules of the society. According to the opinion of Professor Hart, in every society, the secondary rule of law should be followed (Sheehan, 2017). In case of primary rules of law of the society can be affected by uncertainty static disorder and social pressure. Primary rules are basically reveals the rules of conduct was the secondary rules includes the creation and alteration of comedy rules. The nature of the secondary rules is power conferring and as per the statement of Professor Hart, efficiency of law can be possible by maintaining the secondary rules. Under the system of Australia, Hart’s theory is maintained regarding the legal system.
The example of Professor Hart’s legal Theory on the Australian legal system can be seen by the power division among the states. In Australia the laws of the legislation are divided into 6 States. Professor Hart thought that legal efficacy is important and it is necessary to satisfy the requirements of the social structure. It is his opinion that you should not only confer but also applied by the judges on different jurisdiction.
The main issue of the case is to whether a party to the contract can assign his own contractual rights to other without his consent or not.
The present case is based on one of the Essential elements of contract law. In Australia the legal system follows the common law base. The origin of common law has been derived from the English law. Contract is an agreement that is bind by law. In the common law system, there are 5 Essential elements of a contract that are agreement, consideration, capacity, intention and certainty. It is stated under the Australian contract Act that there should be an agreement between the contracting parties and there will be an offer and acceptance of the offer. It is important to have a legal relation in between the parties and the contracting parties should attend the majority. The subject matter of the present case is based on the concept theory. It is a common principle of law that no contract shall be made without the consent of each parties. Therefore, if someone want to bind himself in the form of a contract with other party, the consent of the other party is also necessary regarding the same.
In Electricity Generation Corporation v Woodside Energy Ltd [2013] WASCA 36, it was held by the court that any case of sale agreement the endeavour classes regarding the other party is necessary. If the clauses are not maintained properly, it will be regarded as an illegitimate pressure on the others.
By consent it means that if in a contract one person offer something to another and when the other person agree upon the condition stated by the offeror, it will be regarded as consent. The profession of free consent is one of the Essentials of a valid contract. The consent of the party under the contract law can be regarded as an acceptance. In Felthouse v Bindley (1862) EWHC CP J 35, it was held by the code that if any of the parties in a contract does not give his consent for the contractual subject there can be no contractual agreement exists. In Brogden v Metropolitan Railway (1876) L.R. 2, it was held by the court that if there is no consent don’t regarding the contractual parties the contract will be held void.
There are certain other rules regarding the concert that the constant should be free and it should not be affected by any illegal process. Therefore it can be stated that if a constant is derived by way of undue influence or fraud or miss representation then the contract will stand void.
In Williams v Bailey (1866) LR 1 HL 200, the importance of call century in case of contract was stated by the relevant Court of Justice. It is stated there that if a contract has been signed in a forged way, the contract will be stand void.
In Allcard v Skinner (1887) 36 Ch D 145, it was held by the cook that if there is any evidence that shows account that has been made between two parties by way of undue influence, either the party shall be at liberty to make the contract voidable.
In the present case, it has been observed that one Idoport Pty Ltd had made a contract with the national bank of Australia to provide them Consulting service. During the contractual period the company has faced certain financial obligation and take a certain loan from Fulham Partners LLC and stated that the company will grant certain charges from the agreement made with the bank. Howrah the company become insolvent after few days later and when the lenders started to claim their money from the contractual agreement, the bank stated that they are not willing to give any concept of what the matter and therefore the lenders sued the bank before the competent court of authority.
The court held that under any contractual agreement the consent of both the parties are important. In this case the subject matter of the dispute is the consultancy agreement and the parties of the agreement are the bank and the company. Therefore it is important to derive the consent of book the bank and the company. It is clear from the statement of the case that the bank did not give its constant over the consultancy agreement and therefore the onus of proof has been laid on the lenders to prove that the steps taken by the bank authority are wrong.
Conclusion:
Therefore, from the above mentioned case law, it has been held at a party of a contract has no right to assign he is liabilities on another person without taking the consent from the person.
The issue of the case is whether Betty can terminate the contract made in between Betty and Ram or not. The present case is based on the term act of God. When any natural disaster occurs, the responsibility regarding the damages caused by the same is not imposed on any human being. Under the Contract Act, the provision of act of God is regarded as the exception to the liabilities.
Under the provision of the contract law, it has been stated that if any party of the contract failed to meet his duties regarding the contractual obligations, she has to pay the other party for such Breach. It has been observed the interest of the parties are involved in any types of contractual agreement and if there is a breach made regarding the same, the outcome of that will be harmful in nature. The term Act of God is an exception to the rule. It wasn’t stated that the rule of impossibility will be applied on the system. If any damage or breach to the contractual agreements is done due to any natural disaster then the liability regarding the breach will not be imposed on neither of the party (Street, 2016).
In Taylor v Caldwell (1863) EWHC J 1, it was held that when the terms of the contract become impossible to perform and the reason behind the same is not applicable on either party, then both the parties could be excused from the liabilities. It was also held that human being has no control over the issue regarding the act of God and therefore, they will be excused from everything that is the outcome of Act of God.
Under the common law system, the contractual obligations are regarded as an important thing and if there is any beach happen so that the question of the applicability of the contract or the validity of the contract cropped up, the party who suffered from the breach, can claim for specific performance of contract. However, in this system, the parties to the contract are excused from any liabilities of the natural phenomena cannot be done by the human beings.
In Lebeaupin v Crispin, it was held by the court that in case of any natural disaster the will of the person or a human being is not a matter of fact. A human being has no power to control the velocity of any natural disaster and therefore in case of act of God, all the liabilities of the contractual parties are to be excused (Yeung & Huang, 2016).
In the present case it has been observed that a contract has been made in between Ram and Betty. Under the contract Ram promised Betty to deliver certain amount of coal on monthly basis. The problem arises when the coal mines of Ram was hit by heavy rainfall. The coal mines were over flooded and Ram realised that it is now impossible to him to deliver the contracted amount of coal to Betty (Stone & Devenney, 2014). Therefore Ram contacted Betty and told about his present condition. As per the principle laid down in the case Tailor vs. Caldwell, it can be said that Betty has all the rights to terminate the contract as neither of the parties are liable in this case.
Conclusion:
Therefore, Betty is advised to terminate the contract. In this situation, she can buy all the necessary coal from other Mines and/ or give Ram another opportunity so that he can deliver the coal again to Betty after the repairing of the coal mines. It is advised to Betty that she can make the contract agreement with Ram as voidable at her will.
Reference:
Baudrillard, J. (2016). The consumer society: Myths and structures. Sage.
Glenn, H. P. (2014). Legal traditions of the world: sustainable diversity in law. Oxford University Press (UK).
Gordon, B. (2014). Acceptance by conduct in ecommerce transactions in Australia. Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia, 28(2), 3.
Jones, R. K., Frohwirth, L. F., & Blades, N. M. (2016). “If I know I am on the pill and I get pregnant, it’s an act of God”: women’s views on fatalism, agency and pregnancy. Contraception, 93(6), 551-555.
Kumar, R., Singh, B., Shahani, D. T., Chandra, A., & Al-Haddad, K. (2015). Recognition of power-quality disturbances using S-transform-based ANN classifier and rule-based decision tree. IEEE Transactions on Industry Applications, 51(2), 1249-1258.
Lamond, G. (2014). Legal Sources, the Rule of Recognition, and Customary Law. The American Journal of Jurisprudence, 59(1), 25-48.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).
Painter, R., & Holmes, A. (2015). Cases and materials on Employment Law. Oxford University Press, USA.
Rembar, C. (2015). The law of the land: The evolution of our legal system. Open Road Media.
Ross, C., & White, S. (2014). Recent Judicial Consideration of Endeavours Clauses in Australia and Singapore. Const. L. Int’l, 9, 9.
Schauer, F. (2015). Legal fictions revisited. In Legal fictions in theory and practice (pp. 113-129). Springer International Publishing.
Seidman, A. (2016). State and law in the development process: problem-solving and institutional change in the Third World. Springer.
Shams, S. R. (2016). Capacity building for sustained competitive advantage: a conceptual framework. Marketing Intelligence & Planning, 34(5), 671-691.
Sheehan, D. (2017). The principles of personal property law. Bloomsbury Publishing.
Stone, R., & Devenney, J. (2014). Text, cases and materials on contract law. Routledge.
Stone, R., & Devenney, J. (2014). Text, cases and materials on contract law. Routledge.
Street, B. V. (2016). The savage in literature: Representations of’primitive’society in English fiction 1858-1920. Routledge.
Villa, C. J. (2017). Is The ‘Act of God’Dead?.
Virgo, G. (2015). Principles of the Law of Restitution. Oxford University Press, USA.
Yeung, H., & Huang, F. (2016). Certainty Over Clemency: English Contract Law in the Face of Financial Crisis. In The Effects of Financial Crises on the Binding Force of Contracts-Renegotiation, Rescission or Revision (pp. 285-305). Springer International Publishing.
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