Rule 1
Every member of a tribe shall have the freedom to take part in any cultural rite. In enjoying the freedom of culture a member of a tribe shall not be compelled to perform any cultural rite that undermines his or her dignity.
This rule emanates from the fact violence may erupt because of cultural differences between different communities. In this sense no tribe is allowed to undermine the traditional cultural practices of another tribe.
Every member of the tribe shall be accorded a right to take part any economic activity enjoy the economic resource that are derived from the tribe’s activities. In addition, appropriate security shall be accord to the members of the tribe to enjoy their rights and fundamental rights.
This rule stems from the fact that numerous tribal communities have been involved in endless fights for resources especially incases where economics resources are scarce.
No member of a tribe shall be subjected to slavery, servitude, forced labor and torture. The tribe council shall take appropriate measures and action to ensure that members of a tribe are not marginalized and are free from any form of discrimination.
This rule was given rise by the fact that minority tribes are sometimes subjected to violent acts through slavery servitude, forced labor and torture from other members of a tribe who consider themselves a power house.
Every member of a tribe shall have the freedom of conscience, belief, thought and opinion. A member of a tribe shall not be denied the access to any facility or institution just because of the belief and opinion they hold. No member of a tribe shall be compelled to embrace a belief, thought or opinion that he or she does not profess.
The nerve of the reasoning behind this rule is that some tribes do not respect the beliefs that other tribes hold hence undermining them and sparking a stream of violence.
Criminal Penalties in United States and Austaralia
In the United States Judges have array of options to consider when imposing penalties on criminal offenders that have been found guilty of criminal offense. However, it is prudent to note that the law relating to criminal penalties differs across the 50 states. This is exemplified by the fact that an act that constitutes of a crime in one state may not be a crime in another state or maybe a less severe crime. Criminal penalties in US and Australia are divided into three according to the type of crime;
These are less serious criminal offenses that are punishable by penalties such as tickets and minor fines. Offenses punishable by tickets and fines in US and Australia include traffic offenses, jaywalking and less serous drug possession charges.
These are criminal offense that are more serious than infractions and are usually punishable by a penalty of not more than one year jail term.
These are the most serious types of crime that are punishable by incarceration of more than one year.
The main criminal penalties in US include;
According to The Crimes Act of 1790 ch. 9, §§ 1, 3, 8–10, 14, 23, 1 Stat. 112, 112–15, 117 crimes that are punishable by the death penalty include treason, murder, robbery, piracy and mutiny. It is worth noting that in Australia capital punishment was abolished in all federal states.
Criminal offences that that are punishable by imprisonment in US and Australia include Burglary, Larceny, Property Offenses, robbery among many others.
In US and Australia Probation is a criminal penalty imposed by a court in replacement of imprisonment. An individual may be subjected to probation for offense that is punishable by imprisonment.
In US and Australia Community service is a criminal penalty for less serious offenses such a minor assault
The Gumland Case
Issue
The issue in this case are whether a lessor in a commercial lease agreement can be able to recover damages for loss of bargain if there are express provisions in the contract for termination creating a fundamental term of a contract and Whether a lessee has an obligation to pay honor the contract and pay rent where he sublets a premises and the sub-lease agreement expires or is terminated.
The general rule relied by the court emanated from reasoning in Photo Production Ltd v Securicor Transport Ltd[1] where the court held that the general rules of contract dictate that an innocent promisee in contract between two parties has a right to terminate the contract and is entitled to recover loss of bargain damages incase of a breach of a fundamental term of the contract. Relying on the Photo Productions case and Bettini v Gye[2] the High Court added that express provisions in a contract could be held to be fundamental terms of a contract even if such terms are absent in the contract thereby giving rise to the power to terminate the contract and recover loss of bargain damages. The court thus upheld the general rule in contract law applied in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd[3] and Financings Ltd v Baldock[4] that breach of an essential term of a contract gives rise to a right o sue for loss of bargain damages.
The primary contract in this case as between Gumland (lessor) and Duffy Bros (lessee). Duffy sublet the property to Woolworths. Although Woolworths defaulted in paying the rent, it had no contractual obligations to the main lessor Gumland. Gumland was an innocent promisee in this case. Duffy had breached an essential term of the contract requiring it to pay rent to the lessor and therefore Gumland had a right to terminate the contract and recover loss of bargain damages. Duffy’s contractual liability stems from the fact that the contract contained provisions for termination that had the force of a fundamental term of a contract (condition) hence leading to the application of the general contractual principles of breach of an essential term. It bears noting that the contract between Gumland and Duffy could not have been set aside by reason of Duffy subleasing the premises to Woolworths.
Conclusion
Duffy was therefore obligated to pay the rents areas, damages arising out of repairing the premises that had been sublet and the difference in the rent and outgoings the lesser ought to have gained from the date the lease was terminated to when it expired despite the fact that that it had sublet the premises to another party.
To Business Clients
In day to day business if a person leases a premise and intends to subleases to another party, he should bear in mind that his contractual obligations with the primary lessor remain enforceable in law. Further, the lessee will be liable in the event the sub-leasee defaults in paying the rent.
The court affirmed the contractual principle that an express provision of a contract could be an essential term of a contract even though not expressly so in the contract. It added more meaning the consequences for breach of a condition in contract by giving an innocent promisee the right to terminate the contract and recover loss of bargain damages in the event of a breach of an essential term of the contract.
Dr Gregory Moore v The National Mutual Life Association of Australasia Limited[5]
Issue
The issue in this case was whether the insurance contract ‘policy’ could be set aside on the basis of a fraudulent misrepresentation made by a party to the contract.
The general rule pursuant to section 18 of the Australia Consumer Law (ACL) is that an individual is not allowed to engage in misleading and deceptive conduct during commercial or business activity. Conversely, in defining a fraudulent misrepresentation the court relied on Pendlebury v Colonial Mutual Life Assurance Society Ltd[6] where it was held that representation will be fraudulent if the maker of the representation made the statements with an intention that it will be acted upon and without belief if the representations are true or false. The court seemed to apply common law rule inherent in Derry v Peek[7] that a representation is fraudulent if it is made knowingly, the maker does not belief about the truth of the representation and the maker is careless whether the representations are true or false. Further, the reasoning of the court concurred with the rule under section 237 of the ACL that stipulates that one is liable for misrepresentation if the one had knowledge that the representations were false.
Under common law the appropriate remedy for a party in contract that was entered to following fraudulent misrepresentation is rescission.[8] This implies that the contract will be avoided or set aside. It bears noting that the right to avoid the contract is not expressly a remedy of fraudulent misrepresentation under section 237 and 243 of the ACL. It will be awarded as a remedy if the claimant adduces evidence proving that he has suffered loss or damage. Notably, the court relied on Section 29(2) of the Insurance Contracts Act 1984 that provides that a party in an insurance contract can avoided the contract if the a party is found liable for fraudulent misrepresentation.
The rule under common law as encapsulated in Leaf v International Galleries[9] is that upon learning of the fraudulent misrepresentation, but omits to take reasonable measures to avoid the contract the party alleging loss or economic injury will not be entitled to avoid the contract. With respect to affirmation or ‘consent from parties’ following a fraudulent misrepresentation the court in Dr. Moore case relied on the reasoning in Calder Batavia Sea and Fire Insurance Co Ltd[10] that an affirmation that is sound in law and one capable of hindering a party from avoiding the contract is made if the other party is given an opportunity to chose (election) either to avoid or affirm the contract and he does so with full knowledge of all the facts.
Dr. Moore conceded that the representations he made to the insurance company were actually false. This satisfy the common law and statutory test for fraudulent misrepresentation since it shows that he made the representations knowingly, without belief about its truth and was careless whether the representations are true or false. Since there is no doubt that that Dr. Moore made the fraudulent representations, the court had to decided if it was possible that the insurance company could have affirmed the contract thereby diminishing its possibility of avoiding the contract. The evidence on record showed that the insurance company affirmed the fraudulent misrepresentations but did not satisfy the test that would obligate them not to avoid the contract since they did not have full knowledge of all the fact concerning Dr. Moore’s medical concerns.
Conclusion
The court concluded that the National Mutual Life Association of Australasia Limited was rightfully entitled to avoid the contract on the basis of Dr. Moore’s fraudulent misrepresentation. Although the imperial rule is that if a contract if avoided due to a fraudulent misrepresentation any money that was paid is recoverable[11] the court relied on exception in David Securities Pty Ltd v Commonwealth Bank of Australia[12] that a successful defense of change in position renders the money paid under an avoided contract irrecoverable.
Significant of Dr. Moore’s Case to Australia Contract Law
The above rigorous analysis of the profound relationship between contract law, fraudulent misrepresentation, the principle of affirmation and the right to cancel the contract serves as a meaningful reminder that;
Restraint to Trade Clauses
The issue n this case is whether the restraint to trade clause embodied in the contract between Pedro and Lisa will be binding and enforceable at law.
The cardinal rule according to Lord Smith LC in Mitchel v Reynolds[13] is that a trader enjoys the free will to engage in the practice o his trade except in circumstances where there is a restriction by law. However, it is worth noting that in Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co[14] was noted an employer or the person relying on the restraint clause has an obligation to prove that a restraint to trade clause offers reasonable protection to his interest in a particular business if it is expressed in an employment contact. The restraint to trade clause must clearly and equivocally specify the nature of the trade that is to be restrained. According to Rogers v Parry[15], the restraint to trade clause must indicate the time which the restraint is to be effective and state the geographical boundaries where the specific part of the trade should not be practiced. In addition, the time and geographical boundaries stipulated n the restraint to trade clause must be reasonable. This stems from the fact that one cannot restrain another’s trade for a whole life time or for an indefinite period of time and within an unreasonably wide geographical boundary.
Conversely, the restraint to trade clause must be certain. Such certainty is achieved if it is expressed in a clear language devoid any ambiguities or absurdities. This position was stated in the case of Brokers v Howell[16] where the court decided that the restraint to trade clause was uncertain and ambiguous since it did not clearly indicate the time, geographical boundaries and other specific relating to the nature of the trade to be restrained. In Seven Network (Operations) Ltd and Ors v James Warburton (No 2)[17], the court held that a restraint to trade clause will not be declared void for mere uncertainty but the burden rests on the claimant to prove that the clause is materially ambiguous and uncertain making it unable for a reasonable person to draw any implications.
At the onset, is instructive to note that the restraint to trade clause in the contract between Pendro and Lisa is not clear certain and is ambiguous. Against the backdrop, Pedro has a valid interest to protect since she is involved in the French jewelry business and she bought the business from Lisa who was previously engaged in the same business. It is also worth noting that the restraint to trade clause has given reasonable time of two years. However, by further applying the legal rules enumerated above to the facts it is of interest to note that the restraint to trade clause is unreasonable for the following reasons;
Conclusion
It is a plausible conclusion that the restraint to trade clause will not be binding on Lisa and thus not enforceable at law. Lisa will be allowed to operate her new business on the basis that the restraint to trade clause is void.
References
Australia Consumer Law (ACL)
Bettini v Gye (1876) 1 QBD 183
Brokers v Howell [2009] NSWSC 426
Calder Batavia Sea and Fire Insurance Co Ltd [1932] SAStRp 7
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48
Derry v Peek [1889] UKHL 1
Doyle v Olby [1969] 2 QB 158
Dr Gregory Moore v The National Mutual Life Association of Australasia Limited [2011] NSWSC 416
Financings Ltd v Baldock [1963] 2 QB 104 at 120.
Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Insurance Contracts Act 1984 (cth)
Leaf v International Galleries [1950] 2 KB 86.
Mitchel v Reynolds (1711) I P. Wms. 181.
Newbigging v Adam (1886) 34 Ch D 582.
Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co [1894] AC 535
Pendlebury v Colonial Mutual Life Assurance Society Ltd [1912] HCA 9;
Photo Production Ltd v Securicor Transport Ltd [1980] AC 827
Rogers v Parry (1613) 2. Bulstr. 136
Seven Network (Operations) Ltd and Ors v James Warburton (No 2) [2011] NSWSC
The Crimes Act of 1790
[1] [1980] AC 827
[2] (1876) 1 QBD 183
[3] [1962] 2 QB 26
[4] [1963] 2 QB 104 at 120.
[5] [2011] NSWSC 416
[6] [1912] HCA 9;
[7] [1889] UKHL 1
[8] Doyle v Olby [1969] 2 QB 158
[9] [1950] 2 KB 86.
[10] [1932] SAStRp 7
[11] Newbigging v Adam (1886) 34 Ch D 582.
[12] [1992] HCA 48
[13] (1711) I P. Wms. 181.
[14] [1894] AC 535
[15] (1613) 2. Bulstr. 136
[16] [2009] NSWSC 426
[17] [2011] NSWSC
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