(b) Presume in (a) above Livestock Brokers sent the fax on 14 June but because of a transmission error Dorper Sheep Sellers did not receive it. Advise Livestock Brokers under these circumstances.

Answers:

Answer to question 1:

The current case study provides that Mojo Beverage wrongly posted an advertisement of paying a sum of $100,000 to any individual that catches lord harry. However, it was found that the advertisement appeared to be misplaced and error in the advertisement has been occurred as the original sum of award was erroneously quoted to be $100,000, which should actually have been 1,000. Section 32 of the Australian Consumer Law prohibits an individual from posting or placing advertisements in the form of gifts, prizes or other forms of free items that are in association with the sale of goods and services (McKendrick 2014).

Section 32 prohibits such kind of advertisements from promotions by any means of the goods and services that the advertiser does not wants to provide them or not providing the item as offered within the amount specified in the offer or if no amount is provided in the advertisement. Additionally section 32 provides that there should be a specified amount of time must be placed in the rebates, gifts, prizes or other any other free time that would be considered a reasonable time if the same is communicated in the offer (Cartwright 2016). Similarly, it can be stated that if the person is found to have communicated the offer wrongly they should be considered by the court or the tribunal based on the appropriate nature of the gifts and prizes offered and representations that is made by the person regarding the availability of the goods.

Unlike the earlier provisions stated in the Victorian law the exclusion is generally applicable to the standards form contracts. This is usually not defined in the section 27 of the Australian Consumer Act however; it provides the list of factors, which the court might take into the consideration including whether or not the person was under the obligation of accepting the offer or rejecting the terms of contract (Corones 2014). As evident in the present situation of Mojo, it was reported that the company erroneously placed the advertisement and that the accepting or rejecting the terms of the contract was entirely reliant on Ben following the communication of the information of the misplaced prize. An important assertion in this regard can be bought forward by stating that if the consumer alleges that the standard form of the contract will be presumed unless the other parties under “section 27 subsection (1) of the Australian Consumer Law” have proved the same (Belloc 2017).

As for the above stated case the Victorian consumer law prohibits the unfair terms, it is noteworthy to denote that the prohibition only prevails to the consumer contract. As evident in the present situation, it can be stated there was no form of contract that has been created between Ben and Mojo. A consumer is generally refereed as the purpose containing the supply of the goods and service that are held for sale or granting the interest in the land to the person who acquires the goods, services or the interest that is predominantly for the personal use or for the household consumption (Carter 2013). In the present situation of Ben it can be stated that there was no such kind of contract formed however an assertion can be bought forward by stating that there does not existed any contract between the parties.

As held in the case of “Director of Consumer Affairs Victoria v AAPT Limited (Civil Claims) [2006] VCAT 1493” the court of law determines the objective of the agreement rather than taking into the consideration the intention of the parties. From the present situation of Mojo it can be stated that there are no reasonable grounds upon which the it can reasonably be considered to be aware for believing the person for payment of prize or award (Corones 2014). As set out in the “Division 1 of the Australian Consumer Law” there is a prohibition of specified false or misleading representation regarding the goods or services and also lays down the prohibition regarding the specific conduct concerning the offering of rebates, gifts or prizes or wrongly accepting any forms of payment and other forms of conduct.

Taking into the consideration the provision of section 239 it provides the regulator with the power to implement to the court for the orders so that it can redress to the person that the person that is not be named in the proceedings where there has been any form of contravention of the principles stated in the Australian Consumer Law. Similarly, in the present situation it can be stated that the court might take into the consideration the order given Mojo issues apologies for wrongly placing the advertisements in the newspaper for the rewards to the non-party consumer (Gibson and Fraser 2013).

As it is evident in the present situation that the Ben was the non-party consumer, it might redress the court that the non-party might not make an award for wrongly placing the advertisements. The reason for redressing the non-party is that it becomes necessary to consider the circumstances of the individual to whom such award for is made. The court in the present situation might have the regard to determine whether the transparency of the term and the contract stood as the whole in ascertaining whether the term is “fair” or “unfair” (Harris, Hargovan and Adams 2014). Similarly, it should be noted that the terms that forms the main matter of the subject and upfront price relating to the contract are unable to be challenged under these provision. However, the payment that would be made by the Mojo under the terms of the contract, which is regarded as contingent on the occurrence or non-occurrence of the event, are assessed under the unfair means of the contract of provisions (Harvey and Bigos 2015).

In respect of the section 20 of the Australian Consumer Law, it can be stated that advertisement that was placed was unconscionable conduct, which was within the meaning of the convention. In the case of Mojo the concept of unconscionable conduct under section 21 and 22 of the Australian Consumer Law is not bounded by the common law and principles based on the equitable terms (Malbon and Nottage 2013). Therefore, the court might take into the consideration any relevant matters that the advertisement was placed erroneously.

Answer to question 2: 

The present case study is based on the determination whether there was any contract for sale created between the buyer and the seller. As evident from the situation it is found that the Dorper Sheep Sellers Pty was negotiating the sale of dorper sheep to the firm named as Livestock Brokers. Dorper Sheep Seller Pty set out the letter by stating the total number of sheep that are available for sale. Additionally, a time limit of 14 days was provided to reply for the letter sent to Livestock Brokers (Pittard 2013). However, it is found that the Dorper Sheep Seller Pty did not received the letter within the specified time sent by the Livestock Broker based on the assumption that there was a breakdown of communication between the parties. Evidently the Dorper Sheep Seller Pty undertook the decision of selling the same to the other party. However to determine rights and liabilities of the parties in respect of the commercial interactions that is taken place between them it can be stated that there was no contract for sale between them.

According to the Australian Consumer Law, the primary requirement of considering the contract to be valid is the agreement which generally comprises of the offer and the acceptance to the offer along with the meeting of the minds between the parties involved in the contract (Trotman and Wilson 2016). To be more precise an agreement should be certain in all the respect and hence the agreement that is ambiguous, incomplete or constitute mere agreement to agree would not be considered to be enforceable in the court of law. Similarly, in the present situation it can be stated that for a contract to be considered enforceable in the court of law there must be the existence of the considerations. Considerations relates to the price that is being asked or promised by the promisor for the exchange of goods and service.

Considerations is regarded as the essential element in Australia before the contract will be considered to be binding. Similarly, a gratuitous promise would not be considered to be enforceable in the court of law. As held in the case of “Smith v Hughes” no specific form is obligatory to constitute an offer (Turner and Trone 2013). An offer is a considered as the communication comprising of the promise to do something given the person to whom such offer is made does something by affirming the offer or makes the promise in return. An offer should always be distinguished from the invitation to deal.

A deal cannot always be regarded as the simple method of deal and test forms one of the intent when the party that is making the statement is intending that affirmation response is provided which would give rise to the deal or would simply lead to further negotiation. As held in the case of “Carlill v Carbolic Smoke Ball Co” the court placed greater impact on the commercial effect of the conduct relating to the offer (Pittard 2013). Similarly, in the present case of Livestock Broker it can be stated that commercially inconvenient of treating the statement or other conduct, as the offer then it would be regarded it is only an invitation to deal.

Reference List:

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Carter, J. (2013). Contract law in Australia. Chatswood, NSW: LexisNexis Butterworths.

Cartwright, J., 2016. Contract law: An introduction to the English law of contract for the civil lawyer. Bloomsbury Publishing.

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Harris, J., Hargovan, A. and Adams, M. (n.d.). (2014)Australian corporate law.

Harvey, M. and Bigos, O. (n.d.). (2015) Contract law.

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