Entering and Enforcing Commercial Transactions - Assignment Example

Name Course Class Affiliation Instructor Date Case Questions Case Study 3.1 Entering and Enforcing Commercial Transactions Task one: Whether or not there is an enforceable agreement between Bella and Ming In Australia it is necessary that a contract should conform to any sort of formality, this means that at times contracts can be oral and the procedure may not really mean the validity of the contract. However, when it comes to the exchange of property and goods, it is required that the contract be formal for it to be enforceable[Mar07]. This means that the contract between Bella and Ming is not enforceable because the main terms of an enforceable contract is that there must be an offer, and acceptance of that offer. However according to the issue, there is no place that it is reveal Ming accepted the offer and its terms. He only ignored the letter instructions. According to Section 126 of the Instruments act of 1958,1 an action is brought to charge a person when there is proof of a contract for the disposition of the individual’s interest……. Unless the agreement upon which the action is brought, or a note of the agreement, is ……signed by the person who is being charged ……..or the person authorized to sign the agreement2. Task 2: Whether the Cashier is correct upon insisting that there is a legal binding agreement between Ming and DD games: a legally binding agreement is usually one that is enforceable by law. It must contain two components, an agreement and consideration. This means that one party will offer term and conditions which may be accepted or rejected by the other party, if the other party rejects the offer, then it becomes a counter offer[Wil10]. However under Australian legislation, consumer contracts do not actually require any kind of documentation, meaning that when an offer is put in place like was the case of Ming, then the offeror can be in a position to enforce the contract if offeree in this case Ming accepted the offer in the first place. Looking at the incident that took place, by the act of Ming picking the Game from the store indicated that he had accepted the offer. Coming again to reject the offer at the counter is not acceptable meaning that if he refuses to buy the dvd at $50 offer would result in to legal action. This means that DD Games has the grounds to enforce the agreement. Case Study 3.2 Intellectual Property Law 1. Is the Taste of Italy Website, including the slogan protected by intellectual property Law? Yes 2. How Ming has infringed on Bella’s Copy right?According to the Australian Copy right act of `968- Section 36 (1)3, Ming Infringed on Bella’s copy right by copying exactly her artistic work while he was not the owner of the copy right. In addition Ming did not ask for permission to use Bella’s Slogan. 3. Remedies that Bella is seeking: There are several remedies that Bella can use. However in this situation Bella may seek compensation for prejudicing her interests in the slogan or to the effect that by use of Bella’s slogan, Ming profited financially to the detriment of Bella, meaning that he also has to compensate Bella for this[Wil10]. Task 2 1. If the great wall can take legal action to prevent Ming from using the name ‘Taste of China’ which registered under them as well: A trademark is a recognizable sign or an expression that identifies a product or a service of a certain firm or individual with that of others, at times trademarks have also been called service marks since they are usually used to identify the kind of service that that particular firm offers of that particular individual. Infringement of trademark in Australia is covered under section 126 of the trademarks act of 19954. Under this law, it is possible for Great wall to take legal action against Ming, which will be able to prevent Ming from using the name or face damages. This is because, Great wall were the first ones to register the name in china, making them the original owners of the name. If Ming fails to honour legal actions, then they court can also take punitive action against him. This will involve paying for damages caused for the use of other firm’s trademark. In such a situation, Great wall can seek for restraint against using the trademark, the revocation of Ming registration under the same trade mark or if it already gone far, the firm can decide to seek financial compensation and public announcement from Ming[Aus151]. Other areas that Great wall can use to win the case is by presenting their documents for the courts to determine the person who rightfully owns the trademark since the national laws in china may not be applicable in Ming’s current country. Case Study 3.1 Acquiring and Managing Property Task one: Whether the extractor fans are fixtures; and if they can be removed at the end of the tenancy A fixture is an article in a leased or personal property that is annexed to a realty that it becomes part of the actual property. This means that the extractor fans become fixtures to the original lease agreement. It is always the person who attaches the article to determine whether it is a fixture. It is not necessary that it is verbalized, however if need be the courts are able to evaluate these expressions. It is also important that the owner considers the tenants intent by looking at all the facts and circumstances relating to the object including the nature of the article that is affixed and extent to which this object is integrated in to the property[Jem09]. With this regard, then it is possible for the fixtures to be removed at the end of the tenancy. Task 2: Nature of the Term in the Lease, why it is included and action to take with regard to the term. This is discussed under the rights and obligations of the landlord and tenant as provided under the property law act of 19525 which is applied to any sort of commercial leases. With this regard, Goodprice Pty Ltd. has the right to lease the part of the property to another person so long as it does not infringe on my intellectual property rights. However, if in any way this interferes with my rights then I am have a right to revoke the lease since Goodprice Pty Ltd will have gone against the terms and conditions for the lease in the first place[Sim14]. This is because in any lease, there is a warranty that for the lease term, Good price Pty Ltd. Should not in any way hold a claim to or interest in the property that will arise in an act or omission of the leaser or in a way that will infringe or interfere with the lessee’s enjoyment of leasehold interest. This means that Goodprice Pty Ltd. Has not choice by to comply with the specifications laid under the lease in the first place. If the fail to do so then I have a right to revoke the lease or sue them for infringement[Wil10]. Case Study 3.4 Entering and Enforcing Commercial Transactions- Part 2 Task one: (i) Actions that Tony can take against George for his assurance that the produce he supplied is organic. This is a case of fraudulent misrepresentation where George gave Tony a false statement of fact to induce Tony to enter in to a contract with him. The statement was made during negotiations where George assured Tony that all vegetables used in his pizzas were organic. In Australian legislation, pre-contractual misrepresentation is covered under the competition and consumer act of 20106 where section 187 provides that a misleading conduct is where a person trades or engages in conduct that is aimed at misleading or deceiving the other innocent party. One of the action that Tony can take against George of misrepresentation in a contract is duress. With regard to common law, Tony is permitted to escape his contractual obligations by simply rendering the contract voidable[Sim14]. (ii) Remedies available for Tony: Other remedies that are available for Tony will include rendering the contract voidable since it was signed under fraudulent misrepresentation by George. He could also make the contract voidable by citing undue influence where George used fraudulent means to convince Tony to sign the contract. Task 2: (i) Whether Tony has any cause of action in contract law against Enzo In Australian law, a contract is a promise or terms that are set by two parties that is legally binding. This means that a promise becomes an undertaking by one of the parties to do something or not or makes a promise in its place. With this regard a promise thus becomes legally binding, however, there must be an agreement that indicates and offer and acceptance to the offer in order to establish legal relations to the action. However in this case, there was no agreement that indicated will definitely by Tony’s old pizza oven. This means that he still had the power to terminate the contract at will. For this reason, Tony has no legal grounds to against Enzo’s action not to purchase the old pizza oven[Mar07]. (ii) Remedy available to Tony In the event that Tony succeeds in his cause of action, he can claim for damages for breach of contract where Enzo will be required to compensate for financial damages caused by asking Tony to hold the pizza oven for him and not sell to any other party that would have been interested before and during the day agreed upon by the two parties[Sim14]. Works Cited Mar07: , (Frey), Wil10: , (Caenegam), Aus151: , (Austlii), Jem09: , (Jeminez), Sim14: , (Kozlina, Paterson and Robertson), Read More