Terms and Conditions of a Contract - Assignment Example

Terms and Conditions of a contract Name Institution Date QUESTION 1 The Legal issue The legal issues in this situation is to whether there was a element of agreement between Nicholas of Pty construct and the minister for education to enable him construct the school as per the letter or not. In this situation we find that the two parties, (Nicholas and Joan Lim) and actually had prior discussion of which Joan then sent the letter of acceptance to Nicholas. However as Nicholas received the letter of acceptance, he replied immediately showing that he was ready to work under the specified terms. In this case Nicholas had facsimiled the letter before the 5pm deadline, only that the Minister did not receive it in time because there machine was out of paper. When the above matter is looked at, it can be said that it was not Nicholas fault and neither was it Lim’s fault that the communication did not reach her in time. However there are some elements of agreement that should be looked at in this discussion. Discussion First of all to solve this issue, one must look at what constitute an element of agreement in this sense. Generally an element of agreement in law would consider whether in this case there was 1) negotiation process for an offer, 2) creation of a contract to show an acceptance to that offer and 3) and there was an obligation of each of the participants to show consideration and lastly the discharging of the contract (Kötz and Weir April 23, 1998). (Lambiris 01 February 2012) In the above issue, we find that Nicholas, being the Managing direct of Construct Pty offered to provide constructing services for western Australian department to building a new high school in Perth. He did tender the offer to the Minister of education Ms. Joan Lim. After several discussions with the minister, we can see that there was an element of acceptance, when the minister wrote to Nicholas and explained to him that the ministry had accepted to offer him the contract at a value of $20 million provided the work was done by January 3rd 2014. The letter also indicate that should Nicholas accept the offer then he should reply immediately to show that he had accepted to work under the terms specified. At this point we find out that in the same spirit there was an element of consideration, this came out clearly when Nicholas categorically wrote back and facsimiled the letter to the ministry of education showing that he had considered the offer. Explanation According to law, an act of consideration is considered as being able to make a contract enforceable. Generally a contract is an act of establishing an agreement that two or more parties have made in order for them to be able to fix their rights and their duties with the agreement written (Frey August 22, 2007). The job of any law court is to make sure that the contract which is entered into is enforceable. This should be done even when the courts were not responsible and signing of the final contract. The above issue in discussion is the same as the Rudder v. Microsoft Corp1. case where an internet access company used to offer its services to potential customers by use of membership agreement. During this time the potential customers were directed over the internet page to read through a terms of agreement that also contained the monthly fee. If they were in agreement then all they had to do is to click on a check box ‘I agree’ and the online access would be granted to them. However one user wished to terminate his membership, claiming that the service provide had breach the contract as he failed to provide accurate information about the accounts that are chargeable to his credit card. Since the two could not agree, the complainant and others joined together and filed a case against the internet company for breaching the contract. However according to the judge, according to the fact that the clients had scrolled down the page and clicked on the ‘I agree’ checkbox was equivalent to reading on a contract and signing the last page. For this reason the court ruled that the user of the service was bound by the agreement thus dismissed the case. The same case is for the two parties, where the ministry of education had agreed to the offer that was provided for by Nicholas and the construct Pty if he should allow Nicholas Company to provide for the construction services in bid constructing the new high school. At this point the Minister wrote a letter and signed it confirming that she had accepted to give Nicholas the contract (Lambiris 01 February 2012). Nicholas on his side also replied to the letter indicated that he had accepted the offer and even facsimiled it. In this case though one can say that the statement of acceptance was conditional to the fact that Nicholas had to reply before 5pm, we also find out that Nicholas read the conditions and was in acceptance. For this reason it can be agreed that the contract was enforceable (Beavans July 19, 2006). This is because, an offer is viable whenever there is a binding acceptance that indicates the other party accepted the offer’s promise and did follow the condition of imposed by the offer only that the facsimile machine was out of paper. The case was Nicholas was not that which indicated in form of silence as he had responded immediately to the offer at hand. Conclusion In conclusion that it can be agreed that Nicholas and the Construct Pty should go ahead and file a law suit against the Ministry of Education for breach of contract. This is because, the letter of acceptance to the offer and agreement was sent to the company time immediately before 5pm. For this reason it was not Nicholas fault but the failure for the Ministry’s machine to have been serviced in order to have the papers to print the message of acceptance to the contract offer. QUESTION TWO: The legal issue The legal issue here is to whether the terms presented above warranties Nicholas to push for a legally enforceable contract or not. If the statement is revisited we can see that all the elements of a contract had been followed by the two parties. There was an intention to create a legal relationship between the two when Nicholas was advised to approach the minister for education, there was an offer when Nicholas presented to the minister Joan Lin what he can provide for the school. We also see that the minister for education accepted the offer by writing a letter of acceptance. At this Nicholas replied by considering the conditions for acceptance. (Smith May 8, 2006) Discussion According to the law of contract, the contract becomes enforceable when the above conditions have been met. To add on the above, the agreement was in writing. In this case we see that each of the two parties agreed to doing what the other person wanted, even thought there were conditions for acceptance. The nature of the offer was also one that was binding in all aspects2. There was a valid acceptance to the offer by Minister for education which makes the two parties bound by an agreement. Here we again that there acceptance of the offer was also communicated in to the offeror in the manner that was requested or implied by the offeror in prior time. This is at times referred to as a unilateral agreement since it required the offeree to complete his part of the contract as a mode of acceptance form. Explanation For this reason we can say that the agreement was acceptable and should be enforced because Nicholas had already performed his part of agreeing and complying with the conditions of acceptance before the time was due. So the Minister had no right to withdraw from the contract. The court provide for a situation that where and offeree is obliged to perform his or her part in order of the contract in order to accept the offer, then the offeror will not be allowed to withdraw the offer so long as the offeree was in the course of performing the his or her part of which in this case Nicholas had already done. The minister for Education thus did not have the right to terminate the contract and offer it to another contractor while Nicholas had already replied to him indicate that he had accepted the terms of acceptance. The case would only have been difference if Nicholas did not accept the offer in time. That is to say, if the facsimiles print would indicate that Nicholas had replied his acceptance at a time later than 5pm, then that would mean he would not have complied to the terms of acceptance, of which the situation did not happen as such. An offer cannot be agreeable to a contract again if Nicholas on reading the terms and condition to offer of acceptance, would have declined to accepting the $20 Million or to working and making sure that the construction of the new class rooms was done by the time in which the minister had stipulated in the offer of acceptance letter. However in this case we do not see any situation there shows there was change in the terms and conditions for acceptance. An offer can also be rejected when the time stipulated for response has lapsed; however, in this case, Nicholas replied that offer of acceptance in time. The law in general dictates that where an offer is made in a contract agreement, and where there is no expression for time limit, the offer is presumed to have lapsed when the other party declines without accepting the offer. However in this case the time did not lapse and Nicholas did not depart the contract without responding to it. Conclusion In conclusion it can be agreeable that Nicholas has stronger grounds that the Minister to win the case for enforcement of the contract. This means that the two parties had already entered into a contract. For this reason Nicholas should go ahead and file a law suit against the Minister for education for breach of contract on the basis that Nicholas had upheld the terms and conditions of the contract to the letter. The fact that the Minister did not get the letter of acceptance of offer from Nicholas was not his fault but the failure for the ministry of Education to service their machines and ensure that the machine was facilitated with the required paper. In addition to this, the offer of acceptance was not revoked in the right time. In a normal situation, revocation of offer should have been communicated by the minister for education before the offer was accepted by Nicholas, for this reason the revocation of the offer for acceptance by the minister is null and void since it was done after Nicholas had accepted to conditions of the offer. (Graw 15th December 2011) The revocation could have been done in writing or in verbal, but this would not mean that revocation was valid. It would only be if Nicholas had failed to accept the terms of contract in time, he however did which makes them in agreement. All the terms and conditions for the acceptance of the offer were in agreement. The contract between the two thus is enforceable by law. References Beavans, Neal R. Business Organizations and Corporate Law. Cengage Learning; 1 edition, July 19, 2006. Frey, Martin A. Introduction to the Law of Contracts. Cengage Learning; 4 edition, August 22, 2007. Graw, Stephen. Introduction to the Law of Contract 7e. Thomson Reuters, AUSTRALIA, 15th December 2011. Kötz, Hein, and Tony Weir. European Contract Law: Volume 1: Formation, Validity, Agency, Third Parties and Assignment . Oxford University Press, USA, April 23, 1998. Lambiris, Michael. First Principles of Business Law:Interactive Tutorials and Source Book: 2012. Australia, 01 February 2012. Smith, Stephen A. Atiyah's Introduction to the Law of Contract (Clarendon Law series. Oxford University Press, USA; 6 edition , May 8, 2006. Read More