In case of a tribe the theories regarding the real system is quite different from the civilized society. Theories or rules are common in every legal system. In general, it can be said that the rules or norms are encrypted under certain guidebook. That guidebook can be termed as the constitution. In every country of this globe, there are certain norms regulated by the constitution to return the flexibility amongst citizen. However, in this present case it has been observed that the subject matter is evolved with a tribal community and under the tribal community, the primitive system is applicable. The most common feature of tribal societies that there is a General law present and each member of the society or The Tribe has to follow the rule. There is no scope for the state government under the tribal law.
There are 2 classes of legal system present under the English law. They are primary law and secondary law respectively. In case of the tribes, the rules regarding the primary law applicable. It is a shape that under primary law, there are certain loopholes cropped up. It is it common troubleshoots regarding the primary law that they are uncertain in nature.
The main importance of law is that it helps to maintain the proper discipline among the community. As in a tribal society there is no existence of state government therefore it is required to maintain discipline in order to leave with the guidance of natural law. Therefore, in the tribal community every member should follow the rules applicable for them as stated under any constitution of The Tribe.
Certain principles of legal system by professor Hart are applicable here. According to professor Hart, it is important to maintain the systematic formula in any society. If there is any ambiguity present in a legal system it is difficult to follow up the proper education of the legal system by the common people or the member of the society.
In the present case, it has been observed that some new members of The Tribe come to join and were unknown about the legal system of The Tribe. This is a rule under the tribal society that every member should abide by the rules and regulation and therefore it is the duty of the existing number of the child to let them know about the rules and provisions of the legal system by verbally.
In every country, there is a legal system that guide the process of applicability. By the legal system of a country, the ideology regarding the lawmaker can be understood. Common law system is observed in the provinces of Australia. In Australia the doctrine of common law system has been originated from the British Colony. You are so it can be said that the rules of law under the Australian legal system not similar to the rules of the English law. A decision regarding the power is noticed under the Australian legal system and 6 states of Australia are empowered with their own legal rights constitution and laws.
In general, Australia follows the secondary rules of law and therefore certain similarities are observed with the legal principle coined by professor Hart. Professor Hart believe that the power should be divided to avoid the confliction between the legal systems. He was also of the opinion that it is important to avoid the uncertainty in the legal system by adopting the secondary rules of law. Processor Hart has propounded the principle of 3 part legal system . It was his opinion that in case of primary schools of law, uncertainty and static conditions are to be raised. The only solution of the problem is to adopt the secondary rules of law and he had generated certain rules of recognition change and adjudication. A country can be managed systematically if there is a rapid growth him regarding the modification of the rules. it is important to retain the efficacy in case of Resolve a dispute. He was made a try to avoid the loopholes of the primary legal system and deliver certain scopes regarding the existence of the Legal procedure.
He has stated that every member of the society should abide by the rules that are common in nature and it is the duty of the officials of the administrative authorities to look after the matter whether every member of the society are following the rules properly or not.
In the modern Australia the legal system of Hart has been followed up and their certain examples that can be seen as a proof to the fact. The legal system of Australia has been divided into three separate parts that are legislative executive and judiciary. The Legislature of Australia is also divided into 6 different states, which have the self-governing abilities. The social structure of Australia has promised and efficient legal system and the juridical nature of the Australia is also follows the secondary rules of law.
The main issue of this case is to point out the part where it is the right of the contractual party to deliver or transfer certain rights regarding the contractual agreement without obtaining consent from the other party or not. The present case is based on the consent theory that is one of the essentials of the contract. It has been stated under the Australian Contract Act that it contract cannot be legally buying the parties unless and until fulfils all the criteria of the elements of contract.
It should be mentioned that the Australian legal system follows the principle of common law. Australia was a colony of England and therefore the legal system of Australia is maths similar to the legal system of England. It has stated under the Australian contract law that contract is an agreement that is bind by law. A contract can be done by way of an agreement where the parties will stated their condition and consent over the issues mentioned in the agreement. In general there are 5 Essential elements of a contract that are offer and acceptance, intention of the parties, consideration, capacity and certainty. Therefore, it is clear from the elements that offer and acceptance is the base of every contract. In the process of offer and acceptance, a party offers certain things, the other party accepts the same, and intentionally they are binding themselves in a contractual relationship through an agreement.
The subject matter of the case is evolved with the consent theory. The term consent means that both the parties in a contract will be agreed on a certain matter. In case of contract, it is necessary that the parties will have the intention to bind themselves legally and therefore, consent of the parties is necessary.
In a case regarding the Electricity Generation Corporation, 2013, it was observed by the court that an endeavour should be obtained in the case of a sale agreement and the validity of the sale agreement can be cancelled if the same cannot be done in proper way. In is important to maintain the clause regarding the same to achieve the legal procedure in a sale.
One of the requirements regarding the consent is that the party to the contract should have to give his consent freely and under no fear or force. Force means some instrument by which the consenting parties have to give consent under certain pressure such as coercion, undue influence or misrepresentation. There are many cases present under the contract law where any of the parties to the contract had to express their views in the contract forcefully.
In Barton v Armstrong [1976], it was held by the NSW Court that if in a case, one of the contracting parties threatened the other to obtain his consent over the same; the victim party can have the option to make the contract voidable at per his will.
One of the important weapons in the case of forceful consent obtaining cases under the contract law is “duress”. It has been observed by the court that in any case, either the party face any forceful object regarding the consent; he has the right to rescind the contract agreement based on the fact.
In Hawker Pacific Private Ltd. v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298, the defendant had threatened the plaintiff to withhold the entire helicopter if he did not pay him a certain amount of money. Therefore, it was held that the party to that agreement could rescind the agreement.
Another case regarding the duress case is Byle v Byle [1990], where one of the children had forged the signature of his father regarding a contract and threatened the father to kill if he had denied the terms and conditions of the agreement.
From the matter of the present case, it can be observed that one contract regarding the consultancy has been commenced in between the Australian National Bank and Idoport Pty Ltd. After the contract had been made, the company had faced certain financial problems and taken certain loan from one Fulham Partners LLC. The company had secured his consultancy agreement with the bank as a guarantee for the loan without taking any consent from the bank. Problem arises when the bank denied giving consent regarding the same. Fulham Partners LLC had sued the bank before the competent court authority where the court observed that the bank had done the right thing and maintained the rules regarding the consent theory of a contract.
Conclusion:
Therefore, it can be said that without obtaining the consent from one party, other party to the contract cannot assigns his rights and liabilities to the other.
Issue:
The issue of the case is to advice Betty whether she can rescind the contract made with Ram or not.
Relevant rules:
The present case is based on the term “act of God”. The rules under the contract are usually strict in nature as in case of contract, the interest of two or more parties are involved. Therefore, if any of the parties have failed to perform his duty properly, he shall be held liable for the breach of contractual term and the other party can bring case regarding the specific performance against him. Act of God is an exception to that common rule. It is held under the law that in case of Act of God, the responsibility regarding the breach happened by way of certain natural disasters and any parties to the contract had no liability over the breach of this. Therefore, both the parties can be excused under this principle.
In Domtar Inc. v. Univar Canada Ltd. (2011), it was held by the British court that if the cost of the caustic soda has been increased by the reason of Act of God and the facts is unavoidable in nature, no parties will be held responsible for the same.
The same principle regarding the act of God has been observed in Taylor v Caldwell (1863) EWHC J 1. It is a fact that the contractual obligations are important as it helps to retain a discipline among the parties and restricts them to do anything by harming the interest of the parties. However, if any situation cropped up where the conditions of the contract are not possible to maintain by way of certain disaster, the parties to the contract will be excused and any of the party can cancel the contractual agreement. Many of the researchers that a human being has no power to control the natural force and therefore, they should be excused from any liabilities or their interest would be affected have observed it.
Application:
One thing revealed from the subject matter of the present case that a contract regarding the delivery of coal had been made in between the Ram and Betty. It was being contracted that Ram had to deliver certain amount of coal to Betty for her business purpose and the same should be deliver within a certain period. It was continued for certain times and after some months, heavy rainfall affected the coalmine of Ram and he realised that it will not be possible for him to deliver the coal to Betty. He then and there informed Betty regarding the same and expressed his view over the same. The case is an obvious example of the act of God and therefore, Betty is under a dilemma regarding the same.
Conclusion:
Betty is advised to do certain things to tackle the present situation. Betty can terminate the contract as the case is attracted the provision of the act of God. Both the parties to the contract are free from the liabilities and therefore, Betty can purchase necessary coal from others to manage the present situation. Betty is also advised to consider the present condition as Ram has no option to control the situation and can give another chance to Ram after the recovery of the coalmine.
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