Commercial Law Issues - Assignment Example

Supplementary assessment – Commercial law (BULAW1503) QUESTION 1 Introduction The scenario that Brad finds himself in is an unfortunate one. There are several legal issues that can be deduced from the set of facts as presented with regards to the unmanageable situation in which Brad has found himself in. The first issue is that Brad wants the process of filing a petition for bankruptcy is that he will later be discharged from almost all the debts he owes after he has been reinstated from the said bankruptcy. Secondly, Brad wants to protect his properties from potential auction by his creditors. As it is, his situation is a dire one. The disposal of the properties he handed over to his relatives and for the payment of his other debts is cause for the third legal issue which means that in filing for bankruptcy, one must be able to ensure that their properties are first audited to ensure that all the requirement in a bankruptcy proceedings are adhered to. In our case, Brad evidently and conveniently removes properties from his association. The issue will therefore be the information or issue regarding the legality of the arrangement to set off the remaining balances before someone can move on to private dealings. Rule Under Australian law, the practice of common law precedents are exhibited. The Bankruptcy Act (1996) provides that the debtor makes available all information and other miscellaneous needs that will be sharpening. This therefore means that you have to look all the requirements of a bankruptcy and check if it is complete on all fronts. SA 58(3) mentions that an individual’s creditors have to consider all the different properties of the debtor before they can make a move to auction his property. Looking at Brad, it is evident that he has a few belongings which remain under his care and custody. It therefore means that they have to take all necessary measures to ensure that they take any property that belongs t him in a timely fashion before he steps in to make any changes. One ramification of the provisions of the Banking Act indicate that the unsecured creditors should stop making contact with a debtor once he files for bankruptcy. This beats the purpose that the creditors might want to impose on the debtor for their own reasons. Application In application of the bankruptcy Act provisions, Brad may have won on some fronts. To the secured creditors, he will still have to look at a way in which he will pay the debt out. The secured creditors still have a lee way to trace their individual debts and the will therefore have to look at ways in which they could attach the property belonging to Brad for purposes of recovering their debt. On the other hand as well, the application of the law as regards the disposal of personal property for selfish reasons will be cured by the virtue of one conducting searches to ascertain what it is that Brad still owns. If there was an illegal sale of a secured property before filing for bankruptcy, it then means that Brad will have to forfeit the monies which shall be applied to the loan. Conclusion In summary, Brad has to weigh the options he has very carefully before he can make a succinct decision as regards the matter. Filing for bankruptcy means that he will have to do without a legal status and this will generally mean that he must consider the properties that he will pay out to his creditors even after disposing off his personals. QUESTION 2 Introduction Tom, like a normal consumer of insurance products deserves a mention of how he his cover for the architecturally designed house in the Old Hinterland. It is important to look at the conduct of Tom before the storm destroyed the house he valued so much. Insurance companies on their will not generally be willing to compensate a house that has no full information about a particular subject. The response of the insurance companies will therefore be understood in the lines that will be discussed below. Rule Under Australian law the Insurance Contracts Act of 1984 (Cth) is responsible for regulating the general and life insurance policies that follow through under the Australian jurisdiction. This therefore means that the ICA regulates all the persons in Australia before they enter into any insurance contract. Under Section 21 of the Act, that individual has a duty to ensure that they have disclosed all material facts about their house that would be relevant for the insurer where the insurer will use that fact to consider the amount of reprieve that will be given to the insured in terms of compensation. This is important in determining the type of risk that the insurer will be willing to take or to what extent they will apply on themselves for the benefit of the insured. Secondly, disclosure is also important to ascertain the relevant matters that a reasonable person may have for he consideration of the insurance product that will be received. The exception of this rule does not, however, apply to matters regarding disclosure which will diminish the risk of the insured or a matter that is of common knowledge. The other exception in the matter is the information that the insurer, in his normal insurance business ought to have known beforehand. Lastly, the insurer might have waived some parts of the disclosure where he did not require disclosure on some matters. Application Coming back to Tom’s case, it becomes apparent that section 28 of the ICA mandates him to have disclosed relevant parts of information as regards his Old Hinterland house. Insurance companies will therefore not be willing to pay him the full amounts of the policy he had taken. Courts in Australia apply themselves to this concept by reducing the amount that the insurer will have lost if the accident happened. This therefore means that most insurers will make it their business to only cater for the amount that would have paid and will not compensate the full amount of the house. This was the application in the Australian case of Michail v Australian Alliance Insurance Co Ltd [2013] QDC 284 where it was decided that Michail had not disclosed certain aspects of the property he was insuring against. It was held that the insurer was not liable for compensation because of non-disclosure. Conclusion In conclusion, the law remains clear as regards the disclosure of material facts about specific cases. The application of the Act is important because it governs the real picture of what must be put in place to ensure that all factors are considered before someone is compensated. QUESTION 3 Introduction The case of Charles is a classical contract case that has been breached. In an attempt to spruce up his office, Charles seeks advice and indeed purchases the carpet according to the description of the salesman at Carpets R Us. In an unfair and illegal display of unprofessionalism, the delivered product does not match what Charles saw and bought at their store. The law in Australia has provisions under contract law regarding such arrangements. Rules Contract law in Australia follows the common law precedents as traditionally practiced in all states in Australia and the commonwealth. This means that cases that were decided in the UK might apply, albeit in suggestive response against the pertinent issues that are present in the case. The Sale of Goods Act makes sure to provide for remedies and the manner in which sellers and buyers should conduct themselves with regards to the sale of goods. Section 5 of the Sale of goods Act (1954) has a definition of what a good that might be traded is and what a service might be. In the legislation, there are various provisions which need to be highlighted for the benefit of this discussion. Other than the sale of goods Act, the law of contracts states that any contracts for sale of goods must be executed in the most appreciative manner as and when the parties to the contract agreed. Application For this case, the application of Section 6 of the Sale of Goods Act applies. In the Act, it is provided that the buyer of the product has the following benefit when he enters into contract with the seller for the sale of goods. The buyer will have the title as defined in Rowland v Divall [1923] 2 KB 500. The second and most important consideration for this case is the Description of the property being purchased by the buyer. In a contract for Sale of Goods, it is always a condition that the good delivered to the buyer must correspond to their initial description before they were bought. It therefore means that the descriptions and the samples must be same as the final product delivered to the buyer as described in the case of Beale v Taylor [1967] 3 ALL ER 253. The case of Piggeries Ltd. v Christopher Hill Ltd [1972] AC 44 succinctly gives meaning to the description requirement of the products. In the application of the rules above, it is clear that Carpets R Us misrepresented their product offering as against the product which they delivered to the offices of Charles. This is an illegality that borders on the breach of the Contract for Sale of goods. If a sample is shown to a particular buyer, the expectation of that buyer is that the goods will correspond with what he was shown as a sample. Section 20 of the Sale of Goods Act is clear about the issue and explicitly provides that goods sold by sample must correspond to the sample in terms of quality and that the buyer is at liberty to compare the qualities after delivery. After inspection, the buyer is at liberty of rescinding the contract if the goods do not match what was initially shown to him. Conclusion In summary, the case of Charles boils down to the issue of straightforwardness and contract performance in the business field. There are many remedies for breach of contract for the uncouth events that happened to Charles. He may opt to rescind the contract and demand for his money or seek the court to order for specific performance of the contract from Carpets R Us. Question 4. Introduction Different markets are governed by different rules and regulations that make sure the consumers assured about the quality of the products they acquire and consume from different practices. The ACL in Australia has taken several measures to ensure that consumer guarantees are applied in a generous manner and they will be discussed below herein. In the discussion of the rules, it is required that there are several remedies available that will automatically apply to the market trends. This means that manufacturers and traders have a role to play in making sure that final products reaching ultimate consumers should be of good quality. Rules According to the Competition and Consumer Act, 2010, Australians have to be provided with goods and services that are fit for human consumption. This means that the goods that both a manufacturer and retailer has should be looked at in terms of what good it is going to provide the buyer with. In the normal conduct of business, some consumers may not be aware that counterfeit products existing in the market. With consumer guarantees, it becomes important to protect the livelihoods and the hard earned money that consumers spend in acquiring these products. Application Secondly, consumer guarantees apply in the Australian market for purposes of safeguarding the health of the citizens. For food that is sold in Australia, the law provides that these goods ought to be goods that are fit for human consumption. It would be very bad for any given consumer to be affected because of consuming food that is unfit for human consumption. In practice therefore, the law provides that all food vendors need to have the different certifications as regards to the fitness of their foods and the quality in adherence to health standards. Moving on, consumer guarantees are also important for the protection of consumers against rogue manufacturers who make counterfeit products and introduce them to the market. Although the provisions of buyer beware still apply in most contracts, consumers need protection for it is sometimes difficult to differentiate between a genuine product and a rogue one. Section 86D properly provides the punitive measures in which those who do not abide by the set down consumer protection rules will be punished by. The law also provides that if a consumer complains of damages suffered from the purchase of a product, then they are entitled for compensation in damages. Conclusion In conclusion, it is very important that consumers are protected from illicit practices that affect the different markets in Australia. The government has put in place measures to ensure that all consumers are protected against fake products and practices. Through the implementation of different mechanisms, the trade sector will smoothly run in all states in Australia. References Bankruptcy Act (1996) Beale v Taylor [1967] 3 ALL ER 253 Competition and Consumer Act, 2010 Insurance Contracts Act of 1984 (Cth) Michail v Australian Alliance Insurance Co Ltd [2013] QDC 284 Piggeries Ltd. v Christopher Hill Ltd [1972] AC 44 Rowland v Divall [1923] 2 KB 500 Sale of Goods Act, 1954 Read More