Australian Consumer Law and Law of Contract - Essay Example

Law of Contract March 29, 2016 1204 words Name University Introduction This case seeks to answer the following questions: Was there a contract made out of the emails and telephone calls? Did either of the parties involved engage in negligence of duty? If there was any negligence, would there be any compensation to follow? When would the best bidder be chosen? Is there a case that would be raised by both service providers? Does the Plaintiff in question have a case towards the first service provider? Discussion The case will be argued under Contract Law 1 where there has to be two parties where there is an offer made and there is acceptance. In this case, the reward is always money which is termed as a consideration (Latimer, 2012). Where parties decide to agree to the terms of the contract, a legal relation is created where there has to be free willingness to participate in the contract. The creation of a contract is formed by two parties which is the offer and the offered which can be in form of oral communication or written communication (Australian Consumer Law 2010 (cth), s. 19). Consideration acts as a reward in return of fulfillment to services rendered satisfactorily. It should therefore have some legal value but all this is dependent on the decision made by the parties involved. Common law suggests that in cases where services have not been delivered in the decided manner, the offered should compensate any losses incurred as a way of paying up for damages (Mulcahy 2008). In Contract Law 2 both parties should benefit equally thus compensation acts as a remedy which means returning the hurt party to the position they would have been if they had not engaged in the contract. A contract based on estoppels will be used to judge the case where the offered suffers loss due to unfinished work that had been paid for. In the ruling of Australian Woollen Mills Pty Ltd v The Commonwealth,3where there was a contract of buying property.Consideration was part of sealing the agreement where it was held that since the offered did not pay up to his promise for paying the consideration, the contract was null and void. Further in the case of Pharmaceutical Society of Great Britain v Boots4 which was about invitation to treat, the court concluded that there was fulfillment to a sale of contract as there was payment of consideration by the consumer. Hawkins v. McGee5on the issue of how damages can be paid when one breaches a contract, it was argued that according to the facts that Harkins who had undergone a surgery out of burns sustained in an electrical wire, the promise of 100% healing by his doctor Mr. McGee did not reach. In such a case where natural occurrences would play, it was argued that there was no proof of negligence as the doctor was just doing his work with the duty of care in his profession. Not succeeding in bringing back the hand does not mean that there was breach of contract hence the doctor was not liable to payment of any damages. The case of Walton Stores (Interstate) Ltd v Maher,6 affirms that where a promissory estoppels was used as a tool to argue a case, parties relied upon a promise. As a result of relying on it, it was held out that there would be consideration as a reward. Brendan has included an exception clause indicating that he would not be held responsible of any damage that incurred in the course of his service. Such a clause is effective if it is included in the contractors’ contract either through notice or in the course of his service. In this case, the disclaimer was done by notice which binds Brendan to the contract (Ciro, Goldwasser and Verma 2014). An agreement exists where both offerer and the offered accept the terms and conditions whether verbally or in any other form of communication. According to Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd7 on the issue of attaining property development, it was held that according to the rules of acceptance, there has to be an offer communicated so that a binding contract can exist and this has to be exercised by both parties. The issue at hand deals with electronic communication. In Stewards situation, Josh did not take time to find out if there was another quote that was emailed. Josh is therefore liable for not giving a response to Steward. Josh is also liable to steward as he had not communicated previously that there was a previous constructor. This would mean that Steward would charge for repair services which were not the original terms of the contract. As supported in the case of Brinkibon Ltd v Stahag Stahl und Stahlwarenhandels-gesellschaft8, it was deemed that any communication done electronically and in this case email, the offered is deemed to have accepted the offer. As supported in Electronic Transactions Act 1999 (Cth)9, a person is said to have been communicated if the communication is passed using the right address and to a specified person. This is regardless of whether the receiver read it or not. By not informing Brendan that Steward would take up his unfinished work and not giving Brendan any information about it, Josh is also liable for ignorance as he did not pass any communication. Josh and his wife intend to create a legal contract which in this case is commercial. The case of Banque Brussels Lambert SA v Australian National Industries Ltd10 states that in case of commercial transactions with a promise of a gift, it is deemed that the intention is legal hence breaking of the terms is punishable by law. Conclusion As argued in the above cases, Josh and Julia made an invitation to treat to Brendan who did his work but with a disclaimer stating that he would not be held liable for any damages that would occur in provision of his services. It has been concluded that Brendan can sue Josh for not paying up to his contract as Brendan practiced duty of care despite the damages that occurred.On the other hand Steward can also sue Josh for not communicating in time whether he had received the tender (McKendrick, 2007). Brendan should therefore take legal action on the basis of promissory estoppels. Brendan should have received the amount which was equivalent to the services rendered before the floods had occurred (Wishart, 2005).Steward would therefore file for a lawsuit if Josh did not pay for his services being actual construction and repair services. References Australian Consumer Law 2010 (cth), s. 19 Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 at 523 Brinkibon Ltd v Stahag Stahl und Stahlwarenhandels-gesellschaft mbH [1983] 2 AC 34 Ciro, T,Goldwasser, v and Verma, R (2014) Law and business. Melbourne: Oxford University Press. Contract law Electronic Transactions Act 1999 (Cth) Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 Godecke v Kirwan (1973) 129 CLR 629 Hawkins v. McGee (1929) 84 N.H. 114, 146 A. 641 Latimer, P (2012)‘Australian Business Law 201’. CCH Australia Limited. McKendrick, E (2007). Contract law (7th ed.). Basingstoke: Palgrave Macmillan. Mulcahy, L (2008) ‘Contract Law in Perspective’. Routledge. Pharmaceutical Society of Great Britain v Boots [1953] 1 QB 401 Walton Stores (Interstate) Ltd v Maher (1988) 76 ALR 513 Wishart, M (2005). Contract law. Oxford UK: Oxford University Press. Read More