There are many way to reach a workable agreement. Agreement can be reached after long and complicated negotiations or when one party offers to do something in exchange for a performance ( Curtain College 2013). In the general purpose, to reach the agreement can often be described or analyses as ‘offer’ and ‘acceptance’. According to Lamberts (2012, 41) an offer is referred too clear indication of the terms upon which a person is prepared to be bound. While acceptance referred assenting to, agreeing, receiving the terms offered. There are two parties in an offer.
Offer is person who makes an offer and offered is person who receives the offer ( Curtain College 2013) The requirement of an offer Is the transaction needs to be workable and sufficiently complete. Besides this, promissory Is one of the requirement, an undertaking to give or do: or an undertaking of liability ( Curtain College 2013) In the case of Placer Development Ltd v Commonwealth, the commonwealth government said that those companies who imported timber products into Australia would be paid a subsidy. The subsidy was to be of an amount or at a rate to be determined by the Commonwealth from time to time… The government made some initial payments to importers, but then stopped. Placer, who has imported timber, anted to enforce payment of the subsidy (Lamberts 2012, 248). The Issue In this case Is, was what government had said about paying a subsidy to importers a legally enforceable promise? The decision of this case is that the court held that what the government had said was not a legally enforceable promise. What was said may have appeared to be a promise, but on proper analysis it was not Thus, this is not considered as a legally enforceable promise.
In addition, the case of Partridge v Christened, Partridge put an advertisement in a magazine saying: ‘Brainchild socks and hens, 25/each. ‘ He was prosecuted by the RASPS for the statutory offence of unlawfully ‘offering wild birds for sale (Lamberts 2012, 243). The issue of this case is, was the advertisement an ‘offer’ in the legal sense, capable of ‘acceptance’ by any interested person or was the advertisement merely an ‘invitation to treat’, which did not amount to an ‘offer’ within the meaning of the relevant statute?
The decision of this case is that the court decided that,in the circumstances of this case, the advertisement did not amount to an offer in the full legal sense, capable of acceptance to create a binding contract. It was rather only an invitation to enter into negotiations with interested buyers who might themselves offer to buy the advertised birds (Lamberts 2012, 248). Hence, advertisements are generally not offers ( Curtain College 2013). Moreover, the case of Cargill v Carbolic Smoke Ball co, the Carbolic Smoke Ball Company produced patented ‘smoke balls’ made from certain chemicals during an influenza epidemic in England in 1891.
The company marketed these smoke balls as an effective means of preventing influenza. In particular, the company published an advertisement in a newspaper, offering to pay a reward of OHIO to anyone who researched the smoke balls, used them according to the instructions provided, but who nevertheless caught influenza. To demonstrate the seriousness of their offer, the company deposited IOW in a bank account from which to pay the rewards. Elizabeth Cargill saw the advertisement. She bought and used a smoke ball as directed.
When she nevertheless caught influenza she claimed the OHIO reward promised by the company. The company refused to pay her, denying that an enforceable contract with Cargill had been created (Lamberts 2012, 171). The issue of this case is could an offer made to everyone in the world at large be allied accepted by a specific individual who knew of the offer? The decision of this case is NAS offer made to the world at large’ is capable of acceptance by any member of the public who learns of it.
In this circumstances, the advertisement amounted to an offer that was capable of acceptance. Although offers are usually made to specified persons, or to members of a specified group of persons, there is no reason they should not be addressed to anyone in the whole world if that is what the offer intends to do. The valid acceptance of such an offer by any person will create an enforceable contract with the company (Lamberts 2012, 172). Existence, made by the person to whom the offer was addressed and made in an acceptable form ( Curtain College 2013).
Furthermore, the case of Brooking Ltd v Stage undo Stahlwarenhandelsgesellschsaft, the two parties which one was in London and the other one was in Vienna were negotiating a contract a number of telexes were exchanged by the both parties. Two of these telexes constituted an offer and an acceptance (Lamberts 2012, 165). The issue in this case was an acceptance sent by telex in London and received in Vienna, where and when did the acceptance take effect? The decision of this case is the acceptance took effect when the telex was received in Vienna (Lamberts 2012, 165). Tepee 3 Apply the law to the facts As an agreement, it only can be legally enforceable if both the parties intend to be legally bound at the time when agreement is made. In the case study, the question is asked did Steven have a legally enforceable contract with Julia and does Julia have to sell the special offer set to Steven. In this circumstances, Julia has given a special offer to sell the antique mirror and comb set to Steven. However, Steven replies that he has to think about it while Julia says that she will keep the offer open acceptance until loam the next day and Steven agreed with it.
This has shown the promissory of Julia to Steven. In the evening Steven decided to buy the items. He telephoned and leaved a message at pm to effect that he agreed to accept the offer. The next day morning, around 9. AMA, Julia sold the items to other customer, Samaritan. According to the general rule, Julia have to check the telephone machine massage when she start her business in that morning. At loam, Julia telephoned Steven that she was withdrawing the offer because she had sold the items to Samaritan.
Steven told that he had left a message on the answering machine last night on pm that he agrees to the offer. The acceptance took effect as soon as the message sent to Julia ‘s telephone machine. Plus, Steven accept the offer when the contract still existence. Step 4 In conclusion, there is a legally enforceable contract between these two parties, Julia and Steven. Therefore, Julia have to sell the items to Steven. Question 2 Deify the legal issue The legal issue in this case is whether the terms and exclusion clause become a term of the contract.
Explain the principles of law relevant to that issue with reference to authority (cases ND/ or legislation) A term’ is a particular agreed undertaking or promise made in circumstances from which it can be inferred that it was intended to be legally binding. The terms off contract’ describe the entire contents of a legally enforceable agreement. Besides this, terms can be define the rights and duties of the parties and it also provide the yardstick by which performance of the contract is measured (Curtain College 2013).
In the case of LAG Throne & Co Pity Ltd Thomas Forthwith & Sons, Throne bought 50 drums of Underfoot oil from Thomas Forthwith. The sale came about after inconsiderable discussion and after Throne requested and was given a sample of the oil to test. To complete the agreement, Forthwith sent a document to Throne to sign. Describing itself as a contract, the document set out quite detailed particulars about the oil but made no mention of the sample. When the oil was delivered, Throne found that the oil in the 50 drums did not have the same qualities as the sample he had tested.
Throne claimed it was a term of the contract that it souls have been the same (Lamberts 2012, 220). The issue of this case was it part of the agreement that the sale was made by preference to the sample provided? The decision is the parties had not included any reference to the sample in their agreement and the sale was not ‘by sample’ (Lamberts 2012, 220). While negotiating a contract, not everything is said becomes a legally enforceable part of that contract. It can be distinguish into three parts, puffs, opinions, contracting party to engage, attract or excite others into contracts.
It cannot become a part of the contract. Opinions are statements of personal views or beliefs. They are not actionable if honestly made. A representation is a statement of fact made by one party when negotiating a contract. Fundamentally, puffs, opinions and representation could not become part of the contract (Curtain College 2013). In addition, in the case of Handbags v Nolan, an auctioneer offered a cow, the Glen Nolan, for sale at an auction. Before the sale, the auctioneer announced that a pregnancy test had been done on the cow and that the result of the test was ‘positive’.
The buyer bid $3,200 to buy the cow. However, the cow was not pregnant and worse, she proved to be infertile (Lamberts 2012, 202). The issue of this case was it an expressly agreed term of the contract of sale that the cow was fertile and pregnant when sold? The decision is the auctioneer’s statement was an express term of the contract (Lamberts 2012, 202). There are some of the terms in a contract are more important than others. Therefore, to distinguish the important and less important terms is classify by conditions and warranties. Conditions are the terms that are of fundamental importance in the agreement.
Warranties are the terms which are of lesser importance than conditions. ( Curtain College 2013). Also, in the case of Associated Newspaper Ltd v Banks, Banks which is a cartoonist agreed to produced a weekly full-page drawing for Associated Newspaper. Associated Newspaper agreed to pay Banks a salary and to publish the drawing on the front page of the newspaper’s comic section. However, for three weeks, because of paper shortages and consequent production problems, Bannock’s drawings appeared on page 3 of the comic section. Banks protested but Associated Newspapers ignored him.
Banks then decided to terminate further performance of the contract (Lamberts 2012, 153). The issue of this case was the promise to publish Bannock’s drawings on the front page of the comic section an essential term, breach of which would Justify terminating further performance of the contract? The decision is the term was a essential one and Banks was therefore Justified in terminating further performance (Lambent 2012, 153). Terms are ‘expressly agreed’ when they have actually been declared or definitely stated, either in writing or orally.
It may expressly agreed in different ways such as being discussed; or included in a signed document; or referred to on a ticket or terms have been included. Besides that, in the circumstances, a term may be ‘implied’ into a contract, it can be inferred that the term was intended to be part of the contract without being expressly stated or referred to. Terms will implied by fact when is it reasonable and fair, capable of clear, unambiguous expression and not contradict any express terms ( Curtain College 2013). Furthermore, in the case of Betting v Gee, Betting is a singer who is contracted to sing for Gee which is a promoter.
At various events over a 15 week period. It was a term of the contract that Betting arrive six days before the first engagement and attend rehearsals. Betting arrived late and missed four days of rehearsals due to being ill. Because of this breach Gee wanted to terminate the further performance of the contract (Lamberts 2012, 161). The issue of this case was the term requiring attendance at rehearsals for six days a condition, breach of which would Justify terminating performance of the contract, or a mere warranty?
The decision is the term was a warranty, not a condition, and Gee was not entitled to terminate further performance of the contract because of Betting’s breach (Lamberts 2012, 161). In this case, the advertisement that Annette received and Paul accept the request was considered as a legally enforceable contract. Paul who is the owner of the shop which guarantees that the racquets would be restrung correctly with the highest grade of materials. Thus, the promised made by Paul can be trusted and legally enforceable. Annette is a tennis champion and is going to represent Australia in the forthcoming European Championship.
Annette decides to send her tennis racquets to be restrung at Pall’s Racquet Restringing because Annette saw an advertisement on the internet that said that they only use first grade materials when restringing racquets for champions’. Annette also explains to Paul that she is going to the European Championship and she could win the championship so this is highly important that Paul restrings her racquets with the correct tension and materials. Unfortunately, all the strings of Neonate’s racquet broke when she was competing in the first round of the competition.
However, it was discovered that one of the employee allowed his son to restring the racquets and used the wrong strings. This cause her to get ruled out from the championship. She was so upset as she was guaranteed $25,000 worth of endorsements if she reached the finals. Reach a conclusion In conclusion, the condition of this case is Paul guarantees that he would restrung the racquets correctly by using the correct tension and materials. For the warranty in this case is the quality of the string for the racquets. Part B Short Answer question When deciding the new cases, Judges have to follow the doctrine of precedent.
Doctrine of precedent refers to Judges do not have the freedom to decide whether to follow the precedent set by a previously decided case. To requiring a court to follow previous decisions is the best way of ensuring that the law remains certain, predictable and consistent (Lamberts 2012, 28). To use previous cases as precedents, it is necessary to first identify and select the most relevant cases. One of the most important factors in determining relevance is the extent to which the facts of a previous case are similar to the facts of the new ease.
