Australia Business Law - Case Study Example

Running Head: AUSTRALIA BUSINESS LAW ASSESSMENT Australia Business Law Assessment Name Institution A collateral contract does not require any form of consideration A collateral contract is a contract that involves entry into a different but consecutively-entered contract side by side to the main contract. It usually involves entry into a contract between the main contract holder and a third party either before or during the entry of the main contract. Such a contract may be in the form of a promise that is made besides the main contract as a measure of safeguarding the main contract and ensuring no form of bleach is encountered during the execution of the contract. Usually, a collateral contract is made orally by an individual side-by-side to the main contract. The main rule for completion and execution of a collateral contract is that it must not contradict the provisions of the main contract incase the main contract is foregone for whatever reason. Thus, the making of such a contract is in consideration to another contract. The statement that a collateral contract does not require any form of consideration is false, since there is a lot to be considered in entry, implementation and execution of such a contract. First, in the entry of a collateral contract, one must consider the provisions of the main contract so as to ensure that, incase of any requirements or a condition that may require the consideration of that contract, then it may not contradict the provisions of the main contract. Therefore, a collateral contract has to take into consideration the condition and nature of the main contract and in the case where such a contract is to be viewed as the existing contract. Then it can only be found to be viable if and only if it doesn’t defy the requirements of the main contract resulting to a contradictory contract (Treitel, 1999). A collateral contract is not necessarily a written contract. In fact , most of the collateral contracts are not written, as most are oral agreements and promises made between two parties, one being a holder of the main contract and the other a third party. However, consideration is made on the form of promise made even if it was not a written contract. In that way, the contract is found to be binding and viewed just like any other contract hence its judgment made as if it was actually a written one. This is evident from the illustrations made in Heilbut, Symons & Co v Buckleton [1913] AC 30. A collateral contract may be viewed as a contract that was intentionally entered into by one of the holders of the main contract for their own reasons and in any case, such a contract is considered as an actually binding contract which requires the fulfillment of all the promises and commitments found therein. In that manner, a lot of consideration is observed in determining the magnitude of the promises to be fulfilled as well as the actual conditions under which the contract holder established such a contract. It is therefore very important to consider any factors that may have resulted to such a contract as well as identify any evidence of the contract in order for it to be viable. If presence of tangible evidence for the collateral contract is impossible, then presence of witnesses to the contract may be necessary. Finally, in the implementation of the collateral contract especially in a case, a lot of consideration has to be observed to determine if a contract holder was in the best position financially and mentally at the time of entry into the contract so as to determine if they are supposed to follow the requirements of the contract or if they have to overlook some of the details of such a contract. Enough evidence is hence required to support both sides of the contract so as to ensure fair representation and justice is observed in the judgment of a case. Where there is evidence supporting implementation of the contract especially after termination of the main contract, then the contract holder who was in both the main contract and the collateral contract is at the exposure of the collateral contract and hence such a contract is now taken as binding. This implies that even after termination of the first contract, the party is still in a binding contract which must be followed to the letter. Finders are keepers The finders-keepers law is a law that has been instituted into constitutions of many countries, even in Australia and for some factors it is also instituted in the international law. The law gives provisions for any individual to gain ownership of any property he discovers or finds and which has not been previously owned. In this aspect, there is a need to provide enough evidence to show that the property at hand actually has no ownership so as for an individual to be declared the legal owner of the property. The statement that finders are keepers is a true statement based on various considerations on how a property was found, the nature of the property and how long it has stayed without an owner, amongst other factors to be considered in order to justifiably claim that the one who found such a property is actually the one to gain its ownership. Usually, such considerations are made internationally on artifacts and ship wrecks but the same rule can apply even at lower levels like homesteads and locally, provided certain considerations are taken into place. Though a common belief that finders are keepers, this notion may become quite misleading and in most cases very unfair in its application if certain factors are not observed. First, there is a need to consider how a property was found in order for the finder to actually become the keeper. Usually, most of the property may be found lying on another person’s property, for example an old but valuable car lying on a piece of land owned by grandchildren of the car’s owner. In such a case, though an individual may have found the car and realized its value while the owners of the land do not actually realize its worth, the finder can only become an owner if he negotiates with the owners of the land or even purchases such a car, probably at a low price. Only after gaining consent of the actual owners of the land on which such a property is lying can the finder of such a treasure become its rightful owner. The same may happen in the international law if, for example, an old wrecked ship is discovered in deep sea in a territory owned by a certain country. The finders can only become the rightful owners of such a property if they convince the owners of the territory on which such a treasure is lying to give them consent and access to such a treasure and in most cases carry out some compensation. Another factor to be considered is the period in which a property has stayed without ownership. In most cases, any property that is found lying without anyone claiming its ownership may have actually been previously owned by someone. In this aspect, it is only after identifying the reason for the loss of ownership and the period in which the property has remained without an owner that a finder may become the eventual keeper of such a property. For example, if someone wakes one day and finds a car on his compound, with no one to claim its ownership, he/she cannot gain its ownership immediately. In fact, such a property would be put in custody of the local authorities and investigations done to try and identify its origin and only after a long period of time with no one claiming the property can one be able to request for ownership of such a property. A finder of a property may also become its keeper if consideration is made on the nature of the property that has been found. Sometimes, a property that has been found by an individual may be of national or international interest forcing the ownership of such a property to be lost to the authorities. For example, if a person who owned a large piece of land came across a missile that was fired during the second world war without blowing up and then he realized that the materials that had made such a property of great value, he/she may not be able to gain its ownership even if its origin was not identified. “In such a case, the government would have to gain the ownership of such a property” (Kelly, & Holmes, 2004, p.37). In fact, there is a lot of property that a person may find and still not be able to gain its ownership. Natural resources of national interest and other property believed to have been of national interest would only be owned by the government and its finder may only receive some compensation subject to the government procedures (Kelly, & Holmes, 2004). Legal Proceedings John wishes to raise a legal proceeding against his friend Peter and the Golf Club in which he and his friends were playing in when an unfortunate incident occurred. John had gone to play golf with his friends and they were doing well until he hit his golf ball into a fairway and proceeded to where his ball was. He then awaited his friend Peter to hit the ball. Since his friend was not very good at golf, he was inaccurate and missed his target, hitting John on the head with the ball and causing injuries to one of his eyes (Barnett, 2003). During the occurrence of the incidence, there were a few things that happened that could have led to the injuries that John suffered. First, when Peter noted that John was actually ion danger, he tried to warn him but didn’t use the warning language that could be understood by John at such a time. Peter was supposed to shout the words “fore” but instead he found himself shouting “watch out John”. Since John was quite a distance away, he would have lacked to hear or understand what his friend was trying to say soon enough to avoid the danger. Also, John seems to have not been very experienced in the game and this resulted to the incident that happened. On the other side, it appear like there was not a single staff member from the golf club who would have been observing the proceedings of the game being played by John and his friends especially since there seems like some of those playing, like Peter, were amateurs and not very conversant with playing golf as well as its rules and regulations and also safety measures. Presence of a club staff could have saved the situation as the staff member could have either advised Peter on the right time to strike or in the wake of the danger alerted John to seek cover ion the right way that could have probably helped avoid the injuries suffered by John. There was also a problem since, though the golf club had issued one of the friends with an exclusion clause that stated that it would not be liable of any such injuries as suffered by John while playing golf in its premises, the club had failed to convey the message in the right way and also failed to ensure safety precautions are observed in order for it to be fully excluded from the liability that that would be caused by John’s injury. If john was to follow legal proceedings against his friend Peter, there would be a greater probability of failing against him. There are many aspects that would be considered in the case of Peter in order to determine if he was liable of the offence or not. First, from the duty of care clause, there is the section of duty owed between participants in a given activity to stating that care should always be observed between the participants to prevent any danger that may be foreseen or predicted. This implies that a participant is supposed to evaluate his course of actions so as to avoid any negative con sequences that may be encountered during participation in any activity. However, the same clause states that there is no clear definition or extent of the duty owed by one participant to another and only after consideration of many other factors can one determine if the participant actually bleached the duty or if there is no enough evidence to show that the participant did not carry out his duty. In the case of Peter, there are a few factors that could prove him innocent, though he appears to have been guilty of the liability at hand. First, considering his level of experience in the activity, Peter was just an armature and was not very good at playing golf. In this case, he may not have been able to predict well the consequences of hitting the ball in the direction he did. In fact, his intentions were not to hit the ball in the way he did and it’s only due to his inaccuracy that the ball missed its target and hit John. On the other side, it is clear that Peter was also not aware of the safety regulations of the game and that is why he was unable to warn John against the danger appropriately. He may not be held liable for such a mistake since he was supposed to have gotten some training into such precautions and was also supposed to be in company of experienced personnel, especially staff from the golf club, to help him at such an event. Therefore, with these factors being considered, it is clear that Peter would not take liability of the incidence. On the other side, if john was to follow legal proceedings against the golf club, there would be a greater probability of successfully winning against the club. Many factors would be observed that show that the club would take liability of such an occurrence. First, under the duty of care clause, the golf club was expected to put the necessary measures into place so as to ensure that any dangers and consequent injuries that would be experienced due to participation in the given activity of playing golf would be eradicated. In this case, it is clear that the golf club officials had not enquired to know if all the participants were good at playing golf. If they had done so, they would have realized that Peter was not good at playing golf and he would have been accompanied by a qualified assistant. Also, the club had not guided the participants on safety precautions such as ways to alarm one another incase of danger. It also seems like the golf club did not provide its members with an insurance cover that would help in such an incident. Though the golf club provided an exclusion clause, the clause would not be applicable since the club had neglected all the other related factors that would lead to validity of such a clause, especially in ensuring safety of the participants. Therefore, the golf club should be liable for the injuries suffered by John. References Treitel, G. (1999). The Law of Contract (10th Ed.). London: Macmillan. Barnett, E. (2003). Contracts. New York: McGraw hill.  Kelly, D., & Holmes, M. (2004). Business law. London: Prentice Hall Read More