In relation to the problems identified with respect to the process of resolving dispute between the Tribe members a new constitution for the Tribe has been proposed. The primary rule which the new constitution brings into the tribe is to ensure that the process of legal decision making is enhanced. It was identified in the scenario that a decision which was made by the elders was inconsistent in relation to the previous decisions. The new constitution proposes that all decisions have to be consistent to the extent that the facts of the cases are similar to each other. It was identified that the elders were being biased towards their own family members. The new constitution introduces rules that everyone should be treated equally without any form of discrimination and biasness. Secondary rules which are going to address the primary rules have been provided through the new constitution. There have been provisions for an executive body which would enforce the rules made by the elders so that the tribe members are not able to ignore the rules. The constitution has provisions for changing the rules from time to time based on the needs of the society. The new Constitution provides for a set of judges who would decide that whether a tribe member is telling the truth based on evidence.
The new constitution or proposal which has been made in relation to the tribe members is very much in compliance to the 3 part legal system which has been proposed by professor Hart. This is because the proposal has provisions in relation to the rule of recognition. The proposal provides that where there is any defect in the primary rules they can be remedied by secondary rules in place. The proposal also has provisions for the rules of change as it provides that the proposal can be amended from time to time by taking into consideration the needs of the society and such amendments should be in compliance with the constitution. The rules of change provisions has been incorporated in the constitution as it provides administrative powers to the executive who would enforce the decision of the decision makers in the society and also make their own decisions required at the time of exercising their powers. In the same way as pointed out by Hart there is a close connection between the rules of change and the rules of recognition in the constitution.
The provision in relation to the rules of adjudication is also incorporated in the constitution which has been proposed to the Tribe members. This is because the judges who would make the decision have been provided with the powers to ensure that no one takes rules in their own hands and also base their decisions on evidence and proof. The Australian legal system also in the same way as discussed in the proposed constitution for the tribes incorporates within itself the three part legal system proposed by Hart. The provision of consistent decision making is present in Australia through the doctrine of precedent. Common law is present in order to rectify any defects which are identified in relation to statutory laws. The laws have to be made in compliance with section 51 of the Constitution or else they would be declared as invalid. Everyone in Australia is considered equal before the law.
What are the rights of Barry in relation to the discussion between him and Angelo before getting into the contract.
Rule
The primary discussion which needs to be conducted in order to resolve the issue identified above is that of free consent required to formal contract and specifically of misrepresentation. In the case of Smith v Land & House Property Corp. (1884) 28 Ch D 7 it had been ruled by the court that misrepresentation is a form of a false statement which one party makes to another party which are not the part of contractual terms and induces the other party to form a contract.
In addition the Court ruled in the case of Bisset v Wilkinson [1927] AC 177 that for the purpose of taking action against the misrepresentation the statement must be false in relation to the facts and not be a mere opinion, law or future intention.
When a person is making a false statement which is in relation to a future happening it would generally not be considered as a misrepresentation and will not be a cause of action for misrepresentation unless such terms forms a part of the contract as ruled by the court in the case of Esso Petroleum v Mardon [1976] QB 801.
Further it had been stated by the court in Solle v Butcher [1950] 1 KB 671 that and action cannot be taken against the statement which has been made in relation to the existence of a law. It has also been stated by the court in the case of With v O’Flanagan [1936] Ch 575 that where a statement which was actually true when it had been made and due to change in situation have become false it is the duty of the person to disclose the truth or else it would be considered as a misrepresentation.
In the case of Museprime Properties v Adhill Properties [1990] 36 EG 114 it had been ruled by the court that the misrepresentation has to be material in nature which means that it has to have the capacity of inducing a reasonable person to get into a contract. However a strict objective test is not applied to analyse this situation as stated in the case of Attwood v Small (1838) 6 CI & F 232
A claim for misrepresentation can only be brought by a party when they have actually relied on the statement to get into a contract. If the party did not have any knowledge about the misrepresentation it is considered that there was no reliance as per the case of Horsfall v Thomas [1862] 1 H&C 90.
At law there are three kinds of misrepresentation which has been identified and are generally classified into fraudulent, innocent and negligent misrepresentation.It had also been stated by the court in the case of in Redgrave v Hurd (1881) 20 Ch D 1 that a claim of misrepresentation would not arise where the representee had not relied on the misrepresentation and had made his own investigation and judgement. However this rule is not applicable in case of fraudulent misrepresentation as adjudged Pearson v Dublin Corp [1907] AC 351
Where a party has involved in intentionally providing a false statement of fact to induce another party to get into a contract it is known as fraudulent misrepresentation as discussed by the case of Derry v Peek (1889) 14 App Cas 337. In general the courts allow recession as well as consequential damages to parties who have been subjected to fraudulent misrepresentation.
It has been assumed that elements of a valid contract such as offer, acceptance and consideration have been satisfied between Barry and Angelo in relation to the formation of the contract for the vegetable shop. The advertisement before the contract was made stated that there was no competitor of the business which was to be sold to Barry. Further it has been stated by the advertisement that the turnover of the business each month is $20,000. However after getting into the contract it was identified by Barry that both such representation which had been made by the advertisement were false as the business had a competitive in the same shopping village and the turnover was only $13,000 for each month. In relation to the test of materiality it can be stated that the statement made through the advertisement is a material statement of fact which can induce any person to get into the contract. Therefore to the application of the test provided in the case of Museprime Properties v Adhill Properties it can be stated that Barry had reasonably being induced by the statement to get into the contract.Further it can be stated that Barry had relied on the Representation made through the advertisement to get into the contract with Angelo for the purchase of the shop. Therefore it can be stated that the second test of misrepresentation has provided by the case of Horsfall has also been satisfied. It is also reasonable to state that Angelo must have had knowledge about the existence of a competitor and the turnover of the business in reality and even after knowing so he made a false statement of fact. This conduct on the part of Angelo would constitute a fraudulent misrepresentation under the provision stated in the case of Derry v Peek. In the light of the situation Barry would be provided the right to get out of the contract with Angelo and the contract would be voidable at the option of Barry. Barry would also be able to make a claim for damages as it is a part of a remedy for fraudulent misrepresentation.
Conclusion
The statements made by Angelo before the contract was formed are false statement of facts and are therefore considered as fraudulent misrepresentation
Is a breach of contract claim possible for Barry?
The rules regarding the sale of goods in Australia are governed by the Australian Competition and Consumer Act 2010 or the sale of good Act 1954. The consumer laws are only applicable on purchase has which are done for household or domestic purpose and have a price of less than $40,000. The SOGA is applicable on the purchase of all goods within Australia which does not fall within the scope of the consumer laws.
It has been stated out by the provisions of section 19 of the SOGA 1954 that an implied obligation is imposed on the sellers to provide reasonable quality goods to the buyer even where there had been no agreement which provides for the quality of the goods.
In addition to the provisions of the legislation at common law also implied terms are added to contract in order to ensure that the contracts are able to operate properly. Where the parties get into a contract they discuss certain terms to be a part of the contract however a few terms which have not been discussed by them may also be a part of the contract in order to ensure that the contract performs appropriately.There are various ways in which an implied term can be incorporated into a contract. In the case of The Moorcock (1889) 14 PD 64 it had been provided by the court that an implied term can be added to the contract for the purpose of providing the contract with business efficiency. This situation takes place when the incorporation of the term is so important that without the term it is impossible for the contract to be carried out by the parties. A few other ways in which a contract can have employed terms is through the operation of law or by Customs in industry.
When the contractual rights of a party have been violated common law along with legislations provide various remedies which can be availed by the parties at law. A few remedies which are available to a party in case of a breach of contract include specific performance, injunction, recession and damages. In the Landmark case of Addis v Gramophone [1909] AC 488 the court had provided a ruling that where the party has suffered any form of injury due to the breach of contract they are to be provided compensation so that they can get back to the situation where they were in where the contract has not been formed at all with the wrong doing party.
A written contract has been formed between Angelo and Barry who had been duly signed without the use of any lawyer as Barry did not want to incur additional cost. The terms of a contract included a van along with the loader to be provided to Barry up on the purchase of the shop. However after the purchase of the shop Barry got to know that the Van has been leased and in order to continue using it he has to pay and additional $500 to the party from whom the Van has been leased. Further it had been provided by Angelo to Barry that the expenses which are incurred in relation to managing the business are only $8,000 per month. However through the use of the Van the expenses of the business have increased to $8,500 per month. Therefore in relation to the additional expenses borne buy Angelo for the purpose of using the Van a claim for damages can be made by him. When goods are purchased it is an implied term of the contract that the goods will be at least of a reasonable quality and fit for the purpose for which they have been purchased. If such obvious terms and not present in a sale of good contract the contract would not be able to function properly. Therefore through the application of The Moorcock case is can be stated that the fitness and quality of the goods is an implied term of a contract which is obvious and necessary for the continuation of the contract. The implied term is further supported by the provisions of section 19 of the SOGA 1954. This signifies that it was an implied term of the contract that the loader which has been provided to Barry under the contract would be of a reasonable quality and fit to be used. However the loader has been found to be damaged and in order to repair it expenses equal to its original value have to be incurred. In the given situation Barry through the application of the case of Addis v Gramophone can also make a claim for the expenses would should be incurred for fixing the loader from Angelo.
Conclusion
Barry can make a claim against Angelo and claim damages in relation to the broken loader and the lease expenses of the Van.
Part C
Script
Addis v Gramophone [1909] AC 488
Attwood v Small (1838) 6 CI & F 232.
Bisset v Wilkinson [1927] AC 177
Coyle, Sean. From positivism to idealism: a study of the moral dimensions of legality. Routledge, 2017.
Derry v Peek (1889) 14 App Cas 337
Esso Petroleum v Mardon [1976] QB 801.
Horsfall v Thomas [1862] 1 H&C 90.
Mar, MaksymilianDel. Legal Theory and the Legal Academy. Vol. 3. Routledge, 2017.
Museprime Properties v Adhill Properties [1990] 36 EG 114
Pearson v Dublin Corp [1907] AC 351
Redgrave v Hurd (1881) 20 Ch D 1
Smith v Land & House Property Corp. (1884) 28 Ch D 7
Solle v Butcher [1950] 1 KB 671
The Moorcock (1889) 14 PD 64
Tonry, Michael. “Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment.” (2017).
With v O’Flanagan [1936] Ch 575
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download