Management Law For Cyber Consumer And Unfair Trading

Issue

Discuss about the Management Law for Cyber Consumer and Unfair Trading.

Herein, the issue can be seen in terms of determining the validity of Agreement. On understanding whether the contract is valid as signed by Susan.

It is important to understand the elements of a valid contract:

1. Offer and Acceptance: First and foremost step in creating a contract is through an offer by one party and acceptance by another. It is important that such an offer and acceptance must be valid. Since, a contract primary relies on the criteria of the agreement, the foundation of agreement find its roots through offer and acceptance. Offer and acceptance together make an agreement.
2. Mutual Consent of Parties: in order to establish a valid contract the parties must exhibit consensus on the same thing at the same time and in the same senses. There must be two parties for the formation of a contract that is a promisor and promisee.
3. Intent to create legal obligation: An agreement should validly create a legal obligation. Other than the offer and acceptance, it is important that both parties have a legal intent to go to the court of law, in case if the other party doesn’t meet up its promise (Knapp, Crystal and Prince, 2016). The intention must be to create a legal relationship with clear and certain terms. An agreement that does not create a legal relationship is said to be void.
4. Meaning of agreement must be certain: the agreement should be certain or must be capable of being created certain. In the case where the terms of the agreement are uncertain, vague or confusing, it will lead to no binding for the parties. Every set of promises constitutes an agreement. The proposal, as well as acceptance, should be definite. The acceptance of the proposal must be communicated to the promisor in the mode as prescribed by the offerer.

In case of the first element, it is quite clear that Tom has made an offer to Susan and she accepted the offer through a valid written agreement. It is noticeable that the signature of both parties had been taken which makes it legally binding on them. Furthermore, the intentions were made clear by Tom during the contract to Susan and henceforth cannot be expressly declared void in any circumstance. Thus, Tom’s move to offer Susan only $100,000 to which they have made an agreement is valid.

Conclusion

In the case wherein, Tom makes an offer and Susan accepts the offer it turns out into a valid agreement, which is signed legally by mutual consent. Thus, as per the Contract law, Tom content to pay $100,000 is valid.

Whether or not Steve is legally bound to buy the car from Jason

An offer and invitation to offer are two different terms, which shouldn’t be treated equally. While an offer is a proposal and an Invitation to offer (treat) is to invite someone to make a proposal. Invitation to offer requires being understood differently from offer as the offer will legally bind the person on acceptance and on other hand invitation to treat is merely an invitation and does not bind legally. In case of an offer, there is intent to enter into a contract making it considerably certain (Chen-Wishart, 2012). Besides, in case of an invitation to offer is an act, which further leads to an offer, this is made with an aim to induce or negotiate the terms. The main element which leads to binding legally is valid acceptance. Thus, for making a person binding it is necessary to ascertain the elements which should exist for the formation of valid acceptance:

• Acceptance must be communicated to the offeree.
• Conditions and terms of acceptance must be same as provided in the offer.
• Certainty should exist in agreement.

There must be some initial discussions before the offer is formally accepted. Such preliminary discussions are known “invitations to treat”. The other names given to such pre contractual discussions are “requests for information” or “statements of intention”. However, the invitation to treat is not compulsory to accept, it the parties to contract must not ignore it; since it may affect the offer in some or the other sense. For example, where an invitation to treat is made in response to an offer the terms of the invitation to treat must be expressly incorporated in different terms.

Rules

A contract is legally binding only in case voluntary agreement relating to same has been formed; in which one person makes an offer and other accepts the same. The current case states about an invitation to offer so made by Steve to Jason on the suitable modifications it wished for. Herein the offeror i.e., Steve does not make an offer, rather he invites Jason to make an offer. It only meant to do so for receiving offer and negotiations. While the offer is quite a specific term as it is meant to create legal relations and is an essential element for making a contract. On the other hand, Invitation to offer is a stimulus to instigate the people to make an offer. In the present case, no valid acceptance has been provided by Jason for making the specified modifications. Further, he was not informed by Steve that expenditure is being done to make a car in his accordance. Thus, all the elements of valid acceptance which is necessary for legally binding a person is missing in the present case. In the present case, the offer of “invitation to treat” is made without any negotiations by an action. The offer is supposed to be accepted on the terms of the “invitation to treat”.

Conclusion

Thus, in current case Steve is not legally bound to buy a car as offered by Jason as he had made only an ‘invitation to offer’ and not an ‘offer’ which makes it fundamentally not legally binding on Steve to make the purchase. Further, Jason expended the amount on his own anticipation for making the car in saleable condition. He neither asked Steve regarding the expenditure which was made for making the car as per his choice.

Herein, the issue is whether Harry has any defence to negligence act of Carl.

Battery tort law – As per the common law, the battery is the tort of deliberately bringing about an offensive and un-consented harmful contact with a person or with something that is intimately associated with them. According to some practical examples, a physician may touch a person, under the defence of necessity, without the consent of the person for the purpose of rendering medical service to them in an emergency. Similarly, under the defence of consent, if a person has consented to participate in a contact sport expressly or impliedly, cannot claim for a contact permitted by the rules of that sport against other participants within the duration of play. As per the Civil liability act in case of any loss, there shall be five principles as mentioned in Perre v Apand Pty Limited (1999) shall be applicable:

1. The duty of Care: this is evaluated on the basis of reasonable forcibility as stated in the famous case of the Donoghue v Stevenson neighbour principle wherein the pure economic loss requires the consideration of relationship nature in terms of proximity (Cornock, 2014). In accordance with the Australian law, duty of care are the legal obligations which are imposed on an individual who is required to observe the standard of “reasonable care” while performing any act that is capable of having a possible stake on others. This standard is the first element which is established for proceeding with an action in negligence.
2. Breach of Duty: It is seen that the person in such circumstances could have undertaken precautions. A duty of care imposed by law must be displayed by the claimant that is breached by the defendant. In turn, an individual who has breached the duty is subjected to a liability.
3. Indeterminacy of Liability: there is no indeterminacy of liability as the potential liability is not open-ended. The operation of law between two individuals, who are not in direct relationship with each other, imposes “duty of care”; eventually the individuals become related to each other in some of the other manner, as per the common case law.
4. Causation: As per the common law it is important to acknowledge that the damage was reasonably foreseeable (Mackaay, 2013). The social contract must be considered for formalising the duty of care with implicit responsibilities to be conducted by the individuals towards others living in the society. It is not necessary that a duty of care has to be defined specifically by the applicable law, though it often arises through the common law’s jurisprudence.
5. Damage: as a result of an act or any omission the plaintiff had to suffer an injury.

Applicability of rules

The High Court of Australia has different views from that of the British approach towards duty of care; the latter still recognizes the element of proximity. The law of Australia first determines whether or not the case in hand fits in a category where a duty of care has been found. If the case is out of the range of the established category, it must be foreseeable that the defendant’s action could harm the society as general. If the case is out of the range of the established category, it must be foreseeable that the defendant’s action could harm the society as general. It is then the Court applies a test of ‘salient features’ for determining that whether the defendant is owed a duty of care.

In this case, Harry as a duty of care could reasonably foresee the economic loss. Further, the probability of poor cooking judgement existed as Carl had no knowledge about sashimi. Later, the causation of health illness to Harry was caused due to the negligent conduct of Carl but nevertheless, defence of consent is applicable harry could have avoided the circumstance but he provided consent to the same.

Conclusion

Herein, this regard Harry could have escaped, as there was a probability of risk since Carl didn’t know how to cook sashimi. Though Carl has proven negligence and led to the damage conducted against Harry. Yet, as per the volition fit injuria doctrine, Harry could perceive the reasonable assumption of risk and as such Carl as a defendant can claim its right.

Betty rights under Australian Consumer Law against the apple website

As per ACL section 56 and 57, all the usual consumer rights are applicable when one shops with an Australian online business (Coteanu, 2017). This section states that goods must be in accordance with the cited description either verbally or on packaging or labelling. Accordingly, it states that the online websites should present no misleading guidelines and compete fairly on the basis of quality and price. The products of Apple.Inc comes with guarantees that are not excluded under the Australian consumer law. The person is entitled, under the law to any replacement or reimbursement for a chief breakdown for any reasonably foreseeable loss. The company also stands liable to a person who is entitled to get the product repair or replaced if they fail to meet the standards of acceptable quality if it is not a major failure. An Apple Limited Warranty is also received by the person when they purchase the products of Apple hardware with which they can obtain additional benefits on the purchase, like the optional Apple Care Protection Plan or Apple Care+.

Betty can use her rights to claims for the damages against the online website of Apple under APL, which serves misleading information as the website, have a good reputation and misleads by faulty specifications.

Conclusion

In the current case, Betty has the right to claim for her rights against the online website under ACL as the product so delivered is not as per the specifications so mentioned.

References

Beale, H., Tallon, D., Vogenauer, S., Rutgers, J. W., & Fauvarque-Cosson, B. (2010). Cases, materials and text on contract law. Hart.

Chen-Wishart, M. (2012). Contract law. Oxford University Press.

Cornock, M. (2014). The duty of care. Orthopaedic & Trauma Times, (24), 14-16.

Coteanu, C. (2017). Cyber consumer law and unfair trading practices. Routledge.

Knapp, C. L., Crystal, N. M., & Prince, H. G. (2016). Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business.

Mackaay, E. (2013). Law and economics for civil law systems. Edward Elgar Publishing.