Bulaw1502 Fundamentals Of Law Answers Assessment Answers

Two issues have been identified in this scenario are the following:

    a)Whether the Desert Discs will have any kind of defenses against the claims of Annie

    b)Whether any kind of legal action can be taken against Annie for recovering the money that have been spent by her during obtaining the discss.

The issue of this situation is whether Dodo will be held responsible for all the debts incurred by Pina.

Answer:

When an offer is formed, it involves the role of promise. Therefore, the offeror should determine that he must have an intend to stay bound by the agreement or offer created as it was observed in the case of Smith v Hughes [1871] LR 6 QB 597. Thus, it can be observed from this situation that an invitation to treat is different from the concept of offer. The acceptance of an offer can considered to be valid when a contract is formed between the parties. If there is no acceptance in the formation of a contract then it will not be considered to be a valid one. On the other hand, invitation to treat is generally referred to as advertisements as it has been observed in the case of AGC (Advances) Ltd v McWhirter (1977) 1 BLR 9454. Although there is an exception in such a situation. Advertisements can also amount a few circumstances to the offers. A situation was observed in the matter of Felthouse v Bindley (1862) 142 ER 1037 where it was decided that to prove misrepresentation as mentioned in a contract, the party injured should determine and prove that the contents of the contract is considered to be a false statement. It is also significant to mention here that when the misrepresentation is proved it must be relied on the presentation and therefore the contract must be entered to by being carried on by the terms specified in the misrepresentation. However, misrepresentation can be divided as a entire innocent misrepresentation if it has been determined that the appropriate grounds to take into account that the misrepresentation caused was not false. When it comes to the fraudulent misrepresentation, they are entitled to get the damages of the contract as it was observed in the matter of Ellul and Ellul v Oakes (1972) 3 SASR 377.  Negligent misrepresentation on the other hand are entitled to the equal number of remedies if the misrepresentation was fraudulent. When the innocent misrepresentation is concerned, the plaintiff cannot annul the entire contract.

In this particular scenario, it is necessary to mention here that the doctrine of contra proferentem can be applied. At the time of interpreting the clauses of exclusion, the Courts will usually interpret the uncertainty placed against the person who is stated to be at fault and wished to rely on the same clause of exclusion. An exemption clause is defined referred to a term in the contract that aims at the purpose of limiting the liability of the parties involved in the contract. For either of the party to rely on the process of excluding the clause is significant to focus on the party when the contract is formed.

Application: It has been observed from the facts provided that an advertisement was published by the Desert Island Disks that stated the customers to be free from selecting any kind of disk that was worth $2.99. The other option was to choose five disks worth $12.99. Thus, the offer of five discs of Beyonce worth $12.99 was chosen by her. It is significant to observe here that the advertisement was considered to be an offer as the same was observed in the case of Smith v Hughes [1871]. An unilateral contract was created by Annie and thus it was later realized that she had carried out the terms as mentioned in the offer and was charged $12.99 for every individual disc. Therefore, related to this, it can be said that the shop from where she had purchased had misrepresented the terms of the offer as mentioned before. Such kind of an invitation will be treated as a negligent misrepresentation as the as   Desert Island Disks failed to make the relevant effort for going through the statements that have been represented. Hence, it can be stated that Annie was entitled to annul the contract and return the discs since she was misrepresented and not provided with the correct offer as it was mentioned. Thereafter, it was also observed that the discs which were provided did not consist any of the songs of Beyonce or the other artists that were mentioned. Though it was stated in the advertisement that the disks which will be provided included all the albums and songs of Beyonce. However, Desert Island Disks will have the authority to restrict the liability based on the clause of exclusion. The clauses were said to be confusing by the Courts and misinterpreted as it was mentioned after applying the rule of Contra proferentem.

Conclusion: Lastly, it can be concluded by stating  here that the discs can be returned by Annie and recover the money that she had spent to purchase them. The Desert Islands Disks thus will not be able to focus on the clauses of exclusion as per the terms since they were said to be ambiguous.

Rule: The concept of joint tenancy is stated to be a form of tenancy that includes the right of survivorship as per the Property Law Act, 1958. When a joint tenancy is created, the owners of the property must devote in the property. The title of the property is obtained during the same time and on the similar document. For example, if due to the death of an owner, the  individual share of the property will be transferred to the other individual automatically. The statute states that maximum of the joint tenancies are funded with a single mortgaged share. Such a scenario was noted in the matter of Leigh v Taylor. It discussed the available duties of the joint owners of a vacant land. A joint owner of a land will be associated in paying the mortgages, maintenance, repairs, taxes, fees and other sorts of necessities if specified by the State itself. Thus, if the property is not using the said property or the land then the other owners involved with the agreement will be liable in paying the compensation. If one of the joint owners have breached the agreement then the one of the existing joint owners should fix the fault and clear off the amount of compensation for the breach caused. Along with the duties, there are rights that exist as well (Li, Aw & Lay, 2017). The rights of the joint owners were observed in the case of National Australia Bank v Blacker. When a land is owned by two owners, it must be kept as a mortgage where an individual should put a product in return. Thus, the first right states that the money owed from the rents of the property should be shared equally among the owners. The second right that they can exercise is that profits or losses incurred from the natural resources of the land, the commercial value of it must also be taken into consideration.

Application:

The rule that have been discussed above is applicable in this particular case scenario. The facts of the case states that the joint owners of a vacant land was Dodo and Pina. They both had equal shares on that particular plot of land. Dodo was a resident of Queensland hence, Pina used to take care of the land. The plan was to make a building on that land but Pina without informing Dodo constructed a shack on the vacant land. The land was thereafter put on mortgage since she required money. The money was not paid back and the neighbors had trouble with that plot of land. A legal notice was thereafter sent to both Dodo and Pina from the bank as well as the Council. Dodo was unaware of the incidents but will be held responsible for the debts as his joint owner had borrowed the money for that particular land. They are said to have equal amount of rights and duties as observed in the case of National Australia Bank v Blacker. They will be equally liable for the profits and losses incurred for the land they own. Thus, as per the statute even if Dodo was unaware of the facts and activities he would still have to clear the debts.

Conclusion:

Thus it can be concluded stating that as per the legislation, Dodo will be held liable for the debts incurred.

References:

AGC (Advances) Ltd v McWhirter (1977) 1 BLR 9454

Ellul and Ellul v Oakes (1972) 3 SASR 377

Felthouse v Bindley (1862) 142 ER 1037

Leigh v Taylor

Li, J., Aw, G., & Lay, K. (2017). Reverse mortgages-risks, pricing, and market development. Australian Journal of Actuarial Practice, 5, 55.

National Australia Bank v Blacker

Smith v Hughes [1871] LR 6 QB 597