Analysis of Ali and Marys - Case Study Example

Ali and Mary’s Case Name Institution Course Tutor Date Introduction The scenario entails a situation where Ali, who is a building surveyor for a municipal council, decides to sell his house to Mary. Though the house was never in good condition, and even after realizing this, Mary proceeds to purchase it. The garage appeared to be leaning to one side and had patches that looked like rust on two of the corner braces. After being convinced by Ali, the owner that the house had been doing with the patches for years, Mary proceeds and makes the purchase and this is after a further inspection. Ali further manages to convince Mary that the builder had told them that the garage was in good condition and she needed not to worry. Soon after, a contact is signed by the two; Ali and Mary. The contract however, does not stress on the garage but only mentions it as one of the building on the property. Three weeks later, after Mary had migrated to the house, the garage blew over in a storm and damaged the house and fence. As a consequence, Ching, Mary’s friend who was visiting at that time, is injured as he tried to prevent the garage from collapsing. It is that this instance that Mary is informed that Ali, the seller, had managed to prevent the blow in the previous storm and the builder of the house had told them that the braces were weak and needed replaced. This paper therefore gives an advice as to whether Mary can sue Ali for the breach of contract, and supposes that is possible and appropriate, the remedies that she could seek. The paper further advises Ching whether he can sue anyone for his injuries and if so who, and on what basis. Whether Mary can sue Ali for breach of contract Mary can sue Ali for breaching of the contract. Mary enters a new home after signing the contract in which she accepted the obligation to pay the full sum for the services provided and in this case, the house including the garage. Since the garage is a party to the building, and so part of the contract, Ai can be sued suppose the garage fails to fulfil its obligations. Contract breach, misinformation, misinterpretation, fraud, and breach of implied warranties are all legitimate grounds for a lawsuit in which the Ali’s case is no exception (Kinley, 1998). By claiming that incorporation of statutory and regulatory provisions are built into the contract, Mary is able to expand her rights (as under the contract) protected by the contract. She therefore, had the duty to attack portion of the building, garage in this case, as being a violation of state or federal laws and therefore, the violated can be sued. Suppose the maker’s statement was fraudulent, the injured party generally has a choice of rescinding the contract and suing the seller for the damages caused. If the seller’s (Ali’s) mistake was fraudulent, Mary will generally be permitted to carry out the contract and sue for damages (Rice, Lindsay, & Rees, 2008). She could move into the new house and use for the differences between what she was promised and what she got in return including the injury. But if the seller’s mistake was innocent, and Mary can prove only material misinterpretation, she has no remedy other than rescission. Suppose she chooses to continue with the contract, the she has no obligation but to accept the house the way it is which under very minimal probability would be her choice. The only remedy is rescission and terminating of the contract. Mary may both rescind and sue for the damages caused. Mary could rescind her contract, get her deposit back, and then sue the seller (Ali) for any damages she had suffered including her visitors. Furthermore, rescinding and still suing for damages is available in all cases when the contract is for the sale of good like in Mary’s case. The Uniform Commercial Code (UCC) 2-721 allows a party to rescind a contract and then sue for damages, whether the misinterpretation was fraudulent or innocent (Kinley, 1998). The fact well known is that the party negotiating the contract may not in any case misinterpret the material fact. Mary made an attempt to ask Ali about the condition of the garage but was misinformed. The seller, Ali, knowing that he had prevented the garage wall from collapsing during the earlier storm, used a lie to protect her client from abandoning the contract. Suppose he could have informed Mary about the former incident and that the garage, part of the building, was not in a good condition, the contract would have been terminated. Mary entered a contract under a mistaken assumption that the garage was in good condition (after being convinced) and this situation can be regarded as unilateral mistake. Though it is more difficult for the injured party to rescind the contract but Mary has reasonable grounds to do so. This makes sense, since this was not a bilateral error where neither side really knew what it was getting into, and rescission seems a natural remedy to Mary’s problem (Rice, Lindsay, & Rees, 2008). This, however, is a unilateral mistake where Ali, the seller, simply had a better bargain than Mary, the buyer. Australian courts are unwilling to undo an agreement merely because someone made a foolish deal. Nonetheless, if her proof is strong enough, the injured party in case of unilateral mistake (as in this case) still may rescind the contract. For Mary to withdraw the contract, she should show that she got into the contract due to the fundamental basics and Ali’s confirmation, (1) the contract enforcement was to be unconscionable or (2) she was not aware of the error. Since most of the things were never revealed during the contract signing, as they were sealed by the seller, Ali, there are reasonable grounds to sue him. Mary was not informed that the roof of the garage that form part of the building to be leased was had been damaged by rust and needed repair. Suppose Mary could prove the false statement made by Ali about the roof, fraud or Material misinterpretation due to false statements Ali made. Suppose Mary proves all these statements, she will win the case, whether she shows fraud or material misinterpretation. But Mary’s remedy depends exactly on what she knows. Suppose she proves false statements, Fraud, or justifiable reliance, then her remedy would be to rescind, or perform and sue for fraud. If she proves false stamen, material misinterpretation and or justifiable reliance, then her remedy would be to rescind or to perform. In any case Mary proves sales of the house, false statement, fraud or material misinterpretation or justifiable reliance, then, her remedy would be to rescind and sue for damage or perform and sue for damages. All these options are left for Mary depending on what she could prove. In this case, it can be noted then her remedy wholly depended on herself and her capability regarding what she could prove. In conclusion, the remedy or remedies that Mary should seek depends on the charges she files, her knowledge and preferences. Different proves would lead to various remedies. However, the remedies to be used by Mary could be rescission, sue for damage, perform or perform and sue for damages. Since a contract is usually discharged when all parties have satisfied their obligations, May and Ali must come to a mutual agreement to terminate the contract. However, a contract can also be terminated due to many other reasons such as; mutual agreement of all parties to the contract, impossibility of performance, illegality of the contract, material breach by one or more parties to the contract, fraud on the past of one or more parties, and failure, for example loss or destruction. Mary’s case satisfies most of theses conditions and so have not choice but to terminate the contract. Whether Ching should sue anyone for his injuries Considering that according to the principle of privity of contract, a contract may create rights and obligations only for the parties who conclude it, the third parties are left out. Hence, a person who is not a party to a contract cannot derive rights, duties and contractual remedies from it (Biskup, 2001). The two parties are the people to derive rights from the contract and the third party, according to the law is never considered. The damages caused by the faulty properties cannot be reported by the third party in whatever case. It is only the third party contract that negates the principles. The person making a promise undertakes to the promised individual to perform an obligation to the third party and the third party then receives rights to virtue of the contract between the person promising and the individual promised. This might appear to be the only exception where the third parties are considered. Conclusion In Ching’s case, though the injury occurred in the rented house and in the process of assisting the garage, he has no right to sue any of the members. The reason as to why he became part of the problem is that he was paying a visit to Mary without which he might have not been injured. There was no reason for him to prevent the roof from collapsing knowing that it was dangerous. Furthermore, he was not part of the contract and so not identified by the law, neither was he the relative not family member of the affected. He has not right to file a case against any of the members in whatever condition and so his case can be considered as an accident. However, the constructor would have been charged suppose this accident resulted to serious injuries or death (Barker, 2000). The owner, since Mary had not lived there for a long time would also be counted responsible for the accident. Third parties are never protected in the contract and so could advise Ching not o try suing somebody, whether Mary or Ali but can also sue Ali via Mary. In short, damages and accidents accused by the property can only be reported by the two parties who signed the contract. References Biskup, P. (2001). Australian law: an introduction for senior students. McGraw-Hill Publisher. Rice, S., Lindsay, K. And Rees, N. (2008). Australian Anti-Discrimination Law: Text, Cases and Materials. Federation Press. Kinley, D. (1998). Human rights in Australian law: principles, practice and potential. Federation Press Publisher. Barker, D. (2000). Essential Australian Law. Rutledge Publisher. Read More