Legal Analysis On Liability And Breach Of Contract In An Essay.

1.Discuss Dave’s potential liability using IRAC*. Support your response with relevant case authorities.

2.Using IRAC, advise Feast for Weeks of their rights and remedies (common law only) under the contract.

3.Discuss terms like condition, warranty and intermediate terms.

Both Sally and Dave came under mutual agreement that they will be equal partners in the business Cupcake-R-Us. The present case shows that there has been confusion once the business reached two working weeks and introduction of a delivery driver Jeremy also added to confusion. It is also vital to notethat Sally without communicating with Dave took some crucial decisions from the point of view business. This didn’t go well with Dave,since Dave contributed to business with his asset and Sally agreeing to the fact “that whatever decision is taken will be mutual in nature” aspect makes Dave vulnerable to financial loss (Harris, Hargovan and Adams, 2013). Hence the main issue is the potential liability of Dave. In this case the plaintiff (Dave) is fighting about his rights against the defendant (Sally). Dave feels to have been possibly cheated in terms of decision making. His asset has been exposed to damage. Another major issue that would be raised in this case is the damage that the delivery vehicle did to the other car. It is clear that Jeremy rammed the car during his duty hours and hence it has to be seen from the point of view of organisational liability (Coffee, Sale and Henderson, 2015).

The partnership law is a very relevant law foreffective discussion of this case. Both Dave and Sally had come to a mutual agreement that they would share the profit 50-50 which means they agreed on the fact that both of them will have equal say and rights over the business. As per the information available it is quite clear that Sally did not abide by the rules of agreement where she separately tried to supply cakes to large events. Different territories of Australia have different laws for partnership and in this case it is important to discuss the partnership act of NSW which would help to understand and conclude the case effectively (Duncan, 2012). According to the Partnership Act 1892 section (1) partnership has been defined as the relationship that two people share in a business with profit being the prime motive of the relationship. The rule clearly shows that when two people have a business relationship, then they have to be liable for the actions of business and decisions would be taken as per the partnership agreement. Section 5 of the same law states that every partner has a power to bind the business based on their roles and responsibility. In this case, both Dave and Sally namely agreed upon a 50-50 profit which means both of them had equal say on the business, but was later breached by Sally (Gans and Palmer, 2013).  The Partnership Act 1892 Section (6) states that each and every partner is bound by acts on behalf of the firm which means apart from a limited liability organisation all the partners of a firm have similar liability which has to be effectively addressed by the partners themselves. Section 9 of the same law discusses the liability of the partners against a particular act of omission (Latimer, 2016). Thus the partners in this case had joint liability and mutual agency given their agreement on the profit sharing aspect. According to corporation act 2001 partnership is different from that of a joint stock company or a limited liability organisation. Hence, this is clear that Sally had similar liability to communicate with Dave before taking decisions (Allerdice, 2014).

Issue

This case is the issue of partnership liability. According to Partnership Act 1892 section 1 the partners have to show significant eagerness to carry out business for best interest of the organisation as well as the partners. This was clearly breached by Sally because she separately continued business of supplying cupcakes to large events where Dave was clearly against it (Latimer, 2016). They both agreed on making decisions together because both had the equal stakes in the business. This case is pretty unlike the case Cox v Hickman [1860] as here the defendant was able to deny responsibility and liability because the defendant was merely sharing profit and never had any intention of sharing paternal relationship with the plaintiff but Sally was all clear about the agreement they made which clearly shows that there was clear breach of contract and the partnership Act. In a recent partnership dispute in Wang v Rong [2015] NSWSC 1419 Supreme Court of New South Wales ruled that partners have to act as per the terms and conditions and their actions should be rational. Hence this could be said that Sally did not act in the best interest of the partners and rather wanted to cement her financial interest.

According to the Partnership Act 1892 section (6) every partner is liable for the act of omission of some kind. In the later part of the case it is shown that Jeremy the delivery boy speeds into another vehicle which damages the car and this is a case of vicarious liability. Even though in this case it could be argued that there is a fiduciary duty of Jeremy towards other drivers but since he has committed this fault when he was in official duty it stands to be an issue of vicarious liability. The case of Holis v Vabu Pty Ltd (2001) 207 CLR 21 is a classic case of vicarious liability that showed if a person at work injures another person then that should be considered the responsibility of the employer  (Barker et al., 2012).

Conclusion

From the case it is clear that since Dave is directly attached to the business and agreed to do the business with equal profit Dave will be responsible for the loss the business makes and also under the vicarious liability and hence would have to pay half of the damage caused due to the employer’s responsibility emerging from the case (Bell, 2013).

Rule

This is a clear case of breach of contract. Feast for Weeks did all the right things to get into an agreement and agreed to the different conditions put forward by the other party. The main issue that lies here in this case is the question of rights for Feast for Weeks. When two different entities agree on certain aspects to come to a mutual position regarding business it stands to be important for eachpartner to ensure that they are able to fulfil the criteria. But this did not happen in this case and hence the question is whether Halls and Co. had a duty towards Feast for Weeks or not (Knapp, Crystal and Prince, 2016).

According to the Australian Contract law a contract is considered valid when there is an offer, acceptance, consideration, intention to create legal contract and mental capacity to get into the contract. Also there has to be offer which has to be clearly communicated. First off all agreement is an important aspect which means the parties have to meet mentally to create a contract as shown in case of Smith v Hughes Court of Queen's Bench [1871] LR 6 QB 597 where both parties agreed on certain terms even though the contract was not formed in pen and paper. There was an offer properly communicated and an acceptance was also there from side of Hall & Co. establishing verbal contract (Schwenzer, Hachem and Kee, 2012). As Jerry paid the contracted amount in full to take space on a particular date it becomes clearly unlawful for Hall & Co. to deny it at the last moment. Lampeigh v Braithwaite [1615] showed consideration effectively hence it is clear that consideration was also there. Finally both the parties also agreed to get into a legal contract showing their intention to operate legally. Hence as per the rule under Australian Contract Law it could be said the Hall & Co. has to get into a contract (Chen-Wishart, 2012).

According to the case information it is clear that all the elements are there to consider the discussion between Jerry and the manager of Hall & Co. to consider it as a contract. There was an offer from Jerry which has been rightly accepted by the manager of Hall & Co. and the consideration was also there in the form of money and in fact the consideration was also performed by Jerry as he paid the amount in full in advance which clearly establishes the contract even though there was no contract in pen and paper (McKendrick, 2014). Hence it could be said that denying the usage of the space through an excuse is a breach of contract as the condition was that Jerry would use the space which starts off on a particular date(Paterson, Robertson and Duke, 2012).

Application/Analysis

Conclusion

To conclude it could be said that Jerry clearly hasthe right to ask for refund of payment as well as ask for compensation of the damage of goodwill of the business. He would have received a profit of around AUD 10,000 but this issue made him lose that money. Hence he could sue Hall & Co. for the breach of contract (Schwenzer, Hachem and Kee, 2012).

3.These terms have been discussed with reference toservice agreement that take place between a client and an advocacy service. Here, condition is an obligation that both the parties needs to perform effectively for the best interest of each other. For instance, if the advocacy service doesn’t provide the formal supports effectively then it is considered the breach of contract due to  violation of the agreed terms. This contract clearly states that the patient is able to choose from the range of services and this is a condition of the contract that if the service provider violates this, it will result in a breach of contract and the client has the right to repudiate (Furmston, Cheshire and Fitfoot, 2012).

Warranty in this case is the promise of quality service. Warranty is different from condition. A warranty is not the basic terms on which the contract is built, it is rather a guarantee about the goods/services provision.

In this case intermediate term could emerge only when there is a breach in contract and the impact of that during the time when it happens in financial or other way assessable (Chirelstein, 2013). Here, the intermediate terms will not be defined in a very clear manner, however, severity of breach of the intermediate terms will actually determine whether that will follow consequences of condition or that of warranty.

Condition is considered one of the most important terms in a contract and in case of its breach the suffering party could repudiate the contract. In this case if the client is not allowed to choose from the services he or she can reject the contract as it stands to be of paramount importance for a physically disabled person.

Breach of warranty cannot lead to repudiation of contract but will provide financial assistance to the suffering party. If the support is not up to the mark it could be said that the SP is not able to provide service effectively which will then affect them financially.

The effect of intermediate term comes into the picture with time and the impact. It cannot reject a contract (Hillman, 2012).

Conclusion

In the current context, we may consider the Vodafone's Standard Form of Agreement (SFOA) that sets out for distinct terms and conditions that are applicable regarding the services provided by this telecommunication entity. For the present task we will select the three distinct terms from the Vodafone's Standard Form of Agreement (SFOA), classify and categorize them and identify each of them as either the condition, warranty, or else as the intermediate term, that are associated with the agreement (Khannaand Singh, 2014).

The first term is regarding the Vodafone’s obligation towards the customers. The organization agrees to supply for the services to customers. This term is a condition where the organization must perform in the manner it is committed (Thompson, 2015).

Another term of Vodafone's SFOA mentions the manner in which the prepaid consumers will pay for the services. This is also a condition specifying the distinct policies and terms associated with maintenance, recharge, expiry etc. of the Vodafone prepaid account.

The third term is related to the client’s obligations towards the organization. This can be considered to be somewhere in the middle of the condition and warranties and thus can be classified as an intermediate term (Bryan and Rafferty, 2018)

References

Allerdice, R., 2014. Trusts of partnership interests. Marks' Trusts & Estates: Taxation and Practice, p.537.

Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia. Oxford University Press.

Bryan, D. and Rafferty, M., 2018. Risking Together: How Finance is Dominating Everyday Life in Australia. Sydney University Press.

Bell, J., 2013. The basis of vicarious liability. The Cambridge Law Journal, 72(1), pp.17-20.

Chen-Wishart, M., 2012. Contract law. Oxford University Press.

Chirelstein, M., 2013. Chirelstein's Concepts and Case Analysis in the Law of Contracts, 7th (Concepts and Insights Series). West Academic.

Coffee Jr, J.C., Sale, H. and Henderson, M.T., 2015. Securities regulation: Cases and materials.

Duncan, W.D., 2012. Joint ventures law in Australia. Federation Press.

Furmston, M.P., Cheshire, G.C. and Fifoot, C.H.S., 2012. Cheshire, Fifoot and Furmston's law of contract. Oxford University Press.

Gans, J. and Palmer, A., 2013. Australian principles of evidence. Routledge-Cavendish.

Harris, J., Hargovan, A. and Adams, M.A., 2013. Australian corporate law (Vol. 2). LexisNexis Butterworths.

Hillman, R.A., 2012. The richness of contract law: an analysis and critique of contemporary theories of contract law (Vol. 28). Springer Science & Business Media.

Knapp, C.L., Crystal, N.M. and Prince, H.G., 2016. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business.

Khanna, V. and Singh, A., 2014. Current Trends in International Investment Arbitration. Litig., 41, p.41.

Latimer, P., 2016. Repudiation of Partnership Contracts.

McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).

Paterson, J.M., Robertson, A. and Duke, A., 2012. Principles of contract law. Thomson Reuters (Professional) Australia.

Schwenzer, I., Hachem, P. and Kee, C., 2012. Global sales and contract law. Oxford University Press.

Thompson, C., 2015. Avoiding claims of breach of good faith. Brief, 42(4), p.28