LAWS20058 Australian Commercial Law

Based on Hart's analysis of legal rules, the key rules which help in protecting the members of a tribe from the acts of violence which were developed typically fall under the primary rules category. Such rules are known to impose obligations on individuals, and hence they tend to place an obligation to conform to the behavior of the members of a particular society. Additionally, the primary rules entail the prohibition of a variety of actions which typically cause harm to the members of the tribe. Also, they are subject to crimes and the imposition of hostile reaction from the members of the tribe. The key primary rules include rules which need keeping promises and those which require honesty.

  The only way society could exist peacefully and without any form of violence would be as a result of the establishment of the rules of obligation. Such rules would have a societal control including the general attitude of a group of individuals towards its standard mode of behavior and this in regards to the rules of obligation. He also argued that just a small fraction of society knit by common belief, sentiment, and ties of kin would live peacefully with unofficial rules. The primary rules had certain limitations, and this, therefore, led to the establishment of the secondary rules to help in the application of such rules. Such limitations entailed, a static character of the rules, uncertainty, and inefficiency of the rules. The secondary rules which were developed were categorized into three that is the rule of recognition, change, and adjucation. The rule of change encourages various individuals in the society to properly conduct themselves, and this was considered as a tribal council. The rule of adjudication, on the other hand, helped to create institutions that will make proper decisions on certain disputes relating to criminal acts against another tribe. The above rules were developed to help maintain peace among the tribes and hence prevent acts of violence in societies.

Part B

Based on the Nepal legal system, there are a variety of penalties which can be imposed on the individuals found guilty of committing certain crimes and this is usually based on the type of crime commited.The penalties entail, those relating to imprisonment and the options available are minimum sentences, maximum sentences, and mandatory sentences. The maximum sentences provide for the maximum sentences for all the crimes, and it helps in deciding on the type of sentence to impose. The minimum sentences, on the other hand, give the least minimum sentences. The other penalties imposed on an individual found guilty of a crime is fines. When imposing the fines, the specific period for payment is issued. Another penalty is exclusion orders, and curfews and the above penalties take the form of a conditional bail.

The Nepal legal system also uses the restriction on movement orders as a penalty on those found guilty of crimes and this is usually imposed when such an individual is to be imprisoned for three months or more. The Australian legal system, on the other hand, uses various penalties on persons found guilty of different crimes. Such include, imprisonment, and fines. Unlike in Nepal legal system which has a wide variety of penalties to select, the Australian legal system has only two penalties which can be imposed on an individual found guilty of any criminal offense. According to Hart's analysis, the type of penalty is based on tribal court rules and the tribal constitutional provisions. He argues that the key penalties for an individual found guilty of a crime would be the imposition of a fine on him and this is attributed to the fact that he believed in the rules of recognition and change.

Part C

Issue

The primary matter of the case was about a contract on leasing. Previously Transit management Pty Ltd had leased some of its premises to the Duffy Bros Fruit market Pty Ltd for fifteen years. The agreement was that the lessee was to pay a base rent of $245,343 per annum and a monthly interest of 19.65 percent. Some of the critical legal issues in the case was for instance whether the lessee had breached the clause 10.2 of the 1999 deed or not and this matter was due to the notice of the cross-appeal by the lessee. Another issue was relating to the fact that if the lessee had breached clause 3 of the lease agreement, it would be a breach of a significant term of the lease which would result in termination of the contract. The lessor would, therefore, be awarded for the loss of bargain damages.

The other issue was on whether the breach of clause 3 of the lease agreement would entitle the appellant to recover for the losses which are for bargain damages as is stipulated in section 117 of the Conveyancing Act. The broad areas of the contract law regarding the case included that a particular party may terminate the contract due to the inability of one of the parties to fulfill the obligation it owes. The intention to terminate the contract for repudiation can be done through implied or express conduct. Also, during the formation of a contract, there are certain essential requirements such as agreement, certainty, capacity and the intention of the contract. 

Rule

The key principles used during the ruling for the case primarily included, the legal capacity such that all the parties had the capacity to enter into the contract.

Another principle was on offer and acceptance where the Transit management Pty Ltd offered their premises and in exchange accepted the annual lease payments and the monthly interests by Duffy Bros Fruit Market Pty Ltd. The other principle was on the legal purpose of the contract which was about the leasing of the premises by the Transit Management Pty Ltd. The exchange of value was also another key principle of the law which was used in deciding the case. Under the above principle, cash was used as the means of exchange of value rendered for the services offered to Duffy Bros Fruit Market Pty Ltd.

Application

In deciding the case, the court of appeal made a decision that the agreement was validly terminated and this had been due to the failure to pay for the minimum rental payments. Such a failure resulted in a loss of bargain of damages and the rent arrears. It was also considered that there was a breach of the 1999 deed and not an essential term in the lease. The non-payment of the rental agreement was typically a violation of the contract which had been made in the lease contract which is an essential term of the contract. The contract, therefore, had to be terminated to get the award of loss of bargain damages.

 In conclusion, in its application of the relevant rules, the court argued that Duffy Bros Fruit Market Pty Ltd had in deed violated an essential agreement of the lease by failing to pay monthly rentals. The court of appeal judged that Duffy Bros Fruit Market Pty Ltd was to pay for all the damages it had caused to the Transit Management Pty Ltd by failing to comply with the agreement. Therefore the remedy for the breach of contract was an award to Gumland for the loss and damages resulting in the termination of leasing agreement.

Google Inc. v. ACCC case (2013)

Issue

The case relating to fraudulent misrepresentation by one party in Australia was that on Google Inc. v. ACCC which was decided by the high court in Australia. In the case, Google was accused of deceptive and misleading conduct which entailed the exhibition of an advertiser's web address as a sponsored link . The link also contained the competitor’s name. Based on the case, the key issues were deception and fraudulent misrepresentation by Google. The areas pertaining to the case based on the contract law included contractual agreements, advertisements, and the commercial negotiations. The above areas of business activities are covered by the Australian Commercial Law (ACL).

Rule

The key principles which were used by the judge in deciding the case were based on the fact that ACCC had information about the misleading information which Google had used as an advertisement. He argued that such a representation in form of adverts had been made to induce ACCC into entering into a contract with the Google Inc.

The other principle was on the legal purpose of the information which had been passed by Google Inc. The information was typically used as an advertisement which was opposed by ACCC. Another principle used in deciding the case was on the legal capacity of Google to enter into a contract with ACCC.In the case, it was declared that the two parties had the legal capacity to enter into a commercial contract. Further, there was the principle of exchange of value such that the Google Company was to pass the information concerning ACCC in exchange for some amount of cash.

Application

According to the Australian Commercial Law a fraudulent misrepresentation does not have to be intentional but as long as it misleads the public, it is considered as a breach of contract between two parties. In the case, Google had engaged in deceptive conduct which is against the law by displaying paid advertisements on its search engine. In the application of the relevant law, an individual or company should not commerce or be engaged in conduct which is misleading. The judge, therefore, held that Google had committed a fraudulent misrepresentation act since it had accepted to provide misleading information about ACCC. The court also applied the relevant laws by looking at the different circumstances of the case such that it determined whether the conduct was intentional or not. For instance, it looked at whether Google Inc. had provided misleading information on the Australian Competition and Consumer Commission.

The trial court in their judgment argued that Google had fraudulently provided a misleading information in their advertisement. However, this was overturned by the high court..

Based on the above case, the high court concluded that Google Inc. had not violated the breach of the commercial law. The high court therefore unanimously upheld the appeal case. The argument was that Google had not in deed engaged in the misleading conduct ACCC claimed that it had shown on behalf of its advertisers. Also, according to the justice Heydon, Google never created the message which was found in the advertisement, and therefore there was no basis that Google had indeed used the advertisement. According to section 236 of the law. The remedy for this case was rescission and this led to the termination of the contract between the two parties. The other remedy was compensation for the damages which had been caused to ACCC by the Google Company 

Issue

 The key legal issue in the case entails the violation of the contract agreement which was entered between Pedro and Lisa. In the contract, the two had agreed that Pedro would not be allowed to sell the French jewellery in Australia for two years, but after one year Pedro opened retail businesses to sell imported French jewellery. The broad areas of a contract of law relevant in the case include the terms of the contract which had been agreed upon by the two individuals. The term of the contract was that selling of the imported jewellery in Australia was not allowed for Pedro even though he had breached the agreement. Lisa, therefore, has an option of taking legal action against Pedro based on the law of contract.

Rule

In deciding on the relevant action which should be taken against Pedro, the fundamental principles which should be taken into account include, the offer in simple terms which was that Pedro was not sell imported French jewellery in Australia. The other principle is on a contractual capacity of both Lisa and Pedro such that their capacity to enter a particular contractual agreement has been obtained. Another principle would be on the agreement made between the two parties. Lisa had offered to enter into an agreement with Lisa who had also accepted the terms of the contract but later breached the agreement.

According to the relevant laws of contract, when entering into an agreement, the terms applicable to such a contract has to be complied with. An individual who fails to adhere to such terms is considered to have breached the contract and can, therefore, be sued by another party. In the case of Pedro v. Lisa, the agreement was that Pedro would not sell any of the imported French jewellery in Australia for two years. However, after a year, Pedro opened up a retail business which was selling the imported French jewellery. From the case, it is clear that Pedro had seriously violated the agreement made between them and would, therefore, be sued for gross violation. In deciding the case, Pedro is guilty of breaching the contract and should, therefore, pay for the damages and losses caused to Lisa. The other relevant rule to help in deciding the case would be on the agreement of the contract made between the two parties. Under the rule, it will be prudent to take into account the relevant agreement which was made by both Pedro and Lisa to decide on whether Pedro had in deed contravened the contract.

Conclusion

In conclusion, Pedro is considered to have breached the contract between her and Lisa which had prohibited her from selling imported French jewellery. The remedies for violation of the contract would include, a specific performance which will force Pedro to stop selling the imported French jewellery for a specified period which was two years. Such a remedy will be used since the money damage remedy will not be adequate to compensate Lisa or the breach he had committed.The other remedy would be on rescission which will entail the cancellation of the contract, and both Lia and Pedro will leave the performance of such a contract which they had agreed to execute before one of the parties had breached the agreement. Lastly, the remedy for the breach of the above contract would be a reformation of the agreement such that all the parties are given an opportunity to reflect on that which they had intended to do based on the terms of the contract. The above remedies will be used as the value of the damage caused to Pedro in terms of money cannot be accounted for.

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