Semester 3 Commercial Law 1. What are contracts that are unenforceable? 2. How d

Question

Semester 3 Commercial Law 1. What are contracts that are unenforceable? 2. How do we secure a claim over someone's property in Australia? 3. What are the different business entities available to Australian entities? 4. What are implied and express terms, can you give an example? S. A customer arrives at a ferry terminal and pays for a trip, but find that the boat has left, he demands his money back. Can he get his money back? 6. Are some contracts defective, but can still be enforced? 7. What is a fixture on a property? How is this important if selling a property? 8. What are the distinct advantages of setting up a company? Are there any disadvantages? 9. What are the elements that make up the formation of a contract? 10. What is the parol evidence rule? How does it work and can we get around this? 11. What are the consumer protection provisions available to a consumer? 12. If I see a good, that is marked with the wrong price, does the store have to sell it to me for that price? 13. When can we do without consideration in a contract? 14. Can a promise be enforceable, even though no consideration has passed between the par- ties? 15. I have agreed to lend a friend some money, does he have to pay it back? 16. What are the ways in which a contract may become unenforceable by one of the parties? 17. What is the enforceability of exclusion clauses in contracts in Australia? 18. Jim enters into lengthy negotiations over the purchase of a car. Jim assured by the vendor that the car has been full serviced, and of good quality. Jim purchases the car, but finds it does not work as expected. What are his rights against the vendor? Section 1 Question 1. If an intoxicated person, an adult, enters into a contract, can they claim not to be lia- ble for that agreement? Explain with reference to appropriate law, and any factual situations which might lead to different conclusions as to enforceability of an agree- ment. 3 Marks a)

Explanation / Answer

>what are the contracts that are unenforceable?

An unenforceable contract is a written or oral agreement that will not be enforced by courts. There are many different reasons that a court may not enforce a contract. Contracts may be unenforceable because of their subject matter, because one party to the agreement unfairly took advantage of the other party, or because there is not enough proof of the agreement.

Example

Mary bought a house from Pete using a written purchase and sale agreement. After taking possession, Mary discovers a small leak in a pipe in the crawl space of the house, but does not take any action against Pete for four years. The court decided that the contract was unenforceable because of Mary’s delay, even though the Statute of Limitations had not expired.

> What are the different business entities available to australian entity?

Types of business structures in Australia are:

Company : A proprietary company with a limited liability is a legal business format that dramatically decreases risks of doing business due to a fully independent legal entity (separated from company’s founders and members) and liability limited by a share capital. In Australia, an entrepreneur can set up a company (being its only director and its only shareholder at the same time) and benefit from acting in the company’s name separately from their own name. Another form of the company – a public company – is allowed raise funds from a general public by selling shares on a stock exchange.

Sole Trading : This simple and quite cheap business format fits Individuals who wish to trade legally on their own. It is a perfect choice for small riskless businesses with modest capital investment. Setting up a sole trading, a businessman shares the same legal entity with their business which simplifies making decisions and conducting business operations, but, on the other hand, makes a businessman fully liable for all of their business’ actions, employees, losses, and debts.

Partnership :A form of a partnership fits businesses that unite a small group of people (no more than 20) who work together and distribute the common revenues between themselves. A partnership agreement must specify how exactly a revenue or a loss must be distributed. You can make valuable employees your partners. The format of a partnership is perfect for undertakings for which a limited liability isn’t crucial. There is also a form of a limited partnership that can have one of more (but not all) limited partner(s) whose liability is limited to the portion of their investment(s).

Trust : A trust is a business formation whose profit is given to beneficiaries. The trust implies a trustee (either an individual or a company) who manages trust’s assets, does business and distributes profits in the favour of beneficiaries according to the written document called the trust deed. The trustee is liable for their actions before the law.

>what are the implied and express terms give an example?

An implied contract is created when two or more parties have no written contract, but the law creates an obligation in the interest of fairness based on the parties’ conduct or circumstances.

Eg: One of the most easiest example of implied contract is when you step-in a Taxi in order to reach on time. There is a implied contract between you and your driver that he will ask for the base charge (according to the country you live in) upon the arrival of the place.

An express contract is a legally binding agreement, the terms of which are all clearly stated either orally or in writing. For an express contract to come together, there must be an offer made by one of the parties, and acceptance of that offer by the other party. To determine if an express contract has been properly formed, courts will analyze the communications made between the parties during the formation of the contract

Eg: ohn writes a letter to Harry, offering to sell his house to him for 28 lakhs. Harry, by a written letter, gives his acceptance of the proposal. Such a contract is known as an express contract

>A customer arrives at a fery terminal and pays for a trip ,but find that the boat has left ,he demands its money back .can he get her money back?

IF you miss your boat due to a delay or cancellation, then this means that your tickets are unfortunately lost. Delayed or cancelled ships are not covered in any rail operator’s compensation policy, so you are not eligible for a refund.

>Are some contracts defective but can still be enforced?

Valid contract which lacks legal sufficiency due, for example, to incorrect or incomplete following of a required or statutory procedure, and may not be enforceable by the courts

>what is a fixture on a property?

Fixtures are items that are permanently attached to land, a home, or a commercial building. These items are considered the property of the land, home, or building owner. A prime example of a fixture is a commercial building on a foundation constructed on raw land.

>advantages and disadvantages of setting up a company

Advantages of a company include that:

Disadvantages of a company include that:

>elements that make up the formation of a contract

1 Offer :The first element in a valid contract would be offer. An offer or a promise or an agreement needs to be in contract because if there is no offer than there will be no contract.

2 Acceptance : After having an offer in the contract, there should be acceptance. For a contract to be made there should be acceptance from the other party or person.

.3 Consideration : Consideration is also a very important element in the contract. Consideration in a contract would mean the other person would be giving back something in return. It would be consider as an exchange which would be made between the promisee and promissory

4 Intention to Create Legal Relations :It is essential to have this element in a contract. It is a necessity of the intention to create legal relations although the Contracts Act is silent on the intention to create legal relations as one of the requirements of a valid contract.

5 Certainty :Another main element in a contract would be certainty. The terms and regulations being made in a contract should be stated clearly and understood by the parties of the contract.

6 Capacity: Capacity in a contract is the parties to the contract must have the legal capacity to do so. 18 years old is stated as the age of a major

>parol evidence rule

Legal rule that once a written agreement has been duly executed (signed by all concerned parties) then it cannot be altered or annulled by any oral evidence that may contradict the terms of the agreement, except in case of a fraud or mistake.

>consumer protection provision available to customers

The civil consumer protection provisions are outlined in the Competition and Consumer Act (including the Australian Consumer Law–Schedule 2 ) as shown:

The aim of the provisions is to strengthen the position of consumers relative to sellers, distributors and manufacturers by ensuring that businesses compete fairly on price and quality, and by implying into consumer contracts non-excludable conditions and warranties as to quality, fitness and title.

>if a good marked at wrong price

The general principle is that a supplier cannot display goods for sale without displaying a price in relation to those goods. The exception to this rule is if the goods in question are being predominately used as a form of advertisement.

If there is an error in the price, the supplier cannot insist that the consumer pay a higher price for the goods or services than the one they display. If more than one price is displayed, the consumer is not required to pay the higher of the two prices displayed. However, this does not apply if a new price fully covers an old price.

>when can we do without consideration in a contract

A contract without consideration is void because it is not legally enforceable. "Consideration" means that each party must provide something of value to the other party as designated by the contract terms.

Several elements must be present for a contract to be legally valid:

>can a promise be enforceable even though their is no consideration

A contract is a legally enforceable promise- a promise plus consideration. The definition of consideration has changed over time. In our current system, we have two theories under which a promise may be enforced:

Related Questions

Navigate

• Browse (All)
• Browse S
• Subjects

---

---

Integrity-first tutoring: explanations and feedback only — we do not complete graded work. Learn more.