The contents of the contract formed between Kyle, George and Delicious Hamburgers and whether Kyle and George have the right to legally enforce the contract. Step 2: Explain the rule(s) of law relevant to the principle/area/issue of law identified in step one with reference to authority. There are three main requirements, intention, agreement and consideration to form a legally enforceable contract. The agreement will be legally bound when both parties are intended at the same times, this agreement is known to be legally enforceable.
The element that requires in this discussion is the element of agreement, ‘offer’ and ‘acceptance’ formed between Kyle, George and Delicious Hamburgers. To make an offer, it must be sufficiently complete and promissory. In the case of Placer Development Ltd v Commonwealth (1969) 121 CLC 353, it stated that the decision from the court show that there was not a legally enforceable promise from government because it did not appear to be a promise to pay for an uncertain amount of money under a proper analysis. Hence, the promise to pay subsidy by the government to importers was considered as illusory promise and not an offer. Lamebrain 2014,86) An offer given by the offer is expired after a reasonable time so the person has enough time to consider. It must include the fundamental terms of the agreement with the intention that no further negotiations are to take place as the terms which the offer is prepared to be contractually bound. Offer can be no offer if there not communication to the offered. An offer becomes an invitation to treat when someone is seeking for negotiate business with anybody rather than to implement terms.
An invitation to treat such as advertisements, auction and store displays are the example they are used to convince and entice the interested buyers to move on to the particular products. Such invitations are not consider as offer in law and will not be promises on acceptance. In the case of Partridge v Accredited (1968) 2 ALL RE 421, the advertisement in magazine did not consider as an offer from a legal sense because there was only an invitation to treat as it did not show a binding contract.
The interested buyers attracted by advertisement and entered to negotiate and they themselves might offer to ay the advertised birds. Hence, there was an invitation to treat and not offer for sale. (Lamebrain 201489) In the case of Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd (1953) 1 CB 401, there is self- service in Boots Cash Chemists shop which the customer selected the drugs and medicine they want and pay at the cashier. Some of drugs and medicine have to be sold under supervision of a registered pharmacist because it contains dangerous substances.
The Pharmaceutical Society of Great Britain insist the regulated drugs have been sold without supervision of registered pharmacist . The display f the good did not consider as offer from legal sense because there was only an invitation to treat even the prices are stated. When seller accepted the offer by customer, it only becomes a contract of sale. (Lamebrain 2014,90) An offer may be made to a specific person, an individual or group of persons. The person or persons to whom it is made can only accept the offer so that it is important to identify the person or person to whom an offer is made.
In the case of Cargill v Carbolic Smoke Ball Co(1893) 1 CB 256, any member of the public is capable to accept the offer made to the public at large, such as advertisement, the valid acceptance is still be considered despite the fact that there is typically no notice to accept that accepted the offer. (Lamebrain 201468) Acceptance is an unequivocal statement, for example oral, written or conduct by the offered agreeing to the offer. Acceptance can be made through number of way such as by fax, email post or telex as long as it is made in acceptable form.
Acceptance need to be made before the due date made by the offer and while the offer is still in existence. In the case of Brooking Ltd v Stage Stall undo Stranglehold’s-escalating MBA (1983) 2 AC 34; (1982) 1 All RE 293, the acceptance is effective then it was received in Vienna by send through telex. According to the general rule, the agreement is completed once the acceptance is received. Hence, the acceptance is effective in Vienna instead of London. Lamebrain 201493) Steps: Apply the law to the facts of question in detailed and logical manner. From the case study, Delicious Hamburgers offers to win the grand prize of a Mazda XX-7 by could be redeems a scratch ticket after collected 25 coupons to all customers. Delicious Hamburgers gives time to all the customers to consider the offer and the offer will be expired after limited times. George Machines and Kyle Boss are very interested to the offer to redeem for a scratch ticket might win the grand prize of a Mazda XX-7.
The promotion of the Double Beef Burger box whereby a token would be stuck to the inside bottom and customers could be redeemed for a scratch ticket if 25 coupons were collected by Delicious Hamburgers was barely an invitation to treat rather than an offer. This is because Delicious Hamburgers does say that there will be chance to win the grand prize of a Mad XX-7 and this shows their willingness to boost the sales by gives away grand price. This can referred to Partridge v Accredited (1968) 2 ALL RE 421 and Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd (1953) 1 CB 401 case.
Kyle Boss collected 50 coupons for two scratch tickets and he got gold cars for both scratch tickets. On the same day, Kyle was waiting to show the winning tickets to receptionist but another Delicious Hamburgers worker appeared and posted the notice on the front door of the office about the error due to printers, scratch tickets are null and void and there will not have any prize claimed. Based on Placer Development Ltd v Commonwealth (1969) 121 CLC 353 case,the notice is not accepted because there was promissory between the
Delicious Hamburgers and customers, who are Kyle Boss and George Machines. The advertisement of Delicious Hamburgers have offer the customer by present scratched tickets to Delicious Hamburgers head office and win the grand prize of a Mazda XX-7. After few days, George Machines had discovered the printer’s error of Delicious Hamburgers. He scratched the tickets and found a gold car but he could not receive grand prize because he had not presented the scratched ticket to the Delicious Hamburgers head office before the announcement to win the grand prize step down.
According to the Carla” v Carbolic Smoke Ball Co 1893) 1 CB 256 case, everyone who validity to the condition will able to win the grand prize of a Mazda XX-7 except George Machines. In the case of Brooking Ltd v Stage Stall undo Stranglehold’s-escalating MBA (1983) 2 AC 34; (1982) 1 All RE 293, the acceptance is effective so the Kyle will receive the grand prize because before the announcement of step down the grand prize, Kyle had present the scratched ticket to the Delicious Hamburgers head office.
Step 4: Draw possible conclusions In conclusion, there is no agreement is formed between Delicious Hamburgers and George Machines but Kyle. Kyle can legally enforce the contract. Delicious Hamburgers should award Kyle with a Mad XX-7, where he had validity to win the grand prize that stated in the contract. Question 2: Using the four step process determine the express contents of the contract, based on the Extreme Printers can rely on the exclusion clause in the contract.
You will need to indicate what statements form part of the contract and those that do not in your answer. In addition, in your answer you will need to determine whether the terms are warranties or conditions. The express contents of contract formed between Delicious Hamburgers and Extreme Printers, which includes puffs, opinions, representations and the term of conditions. Identified in step one with reference to authority. The terms of a contract are the statements that express the rights and responsibility of each party to the agreement.
Terms are the element of contract and enforceable at law depend on the matters agreed between the parties and under what circumstances. In some circumstance, the statement become term of contract only if it was intended to be legally binding promise, but intention can only from the words and context for the other cases. In the case of Handyman v Nolan (1 977)13 ALARM 339, the buyer as accepted the offer to buy the cows but the tests have showed the cows are not as good condition as on the sales. The announcement of the test result was a statement of fact, not a mere opinion.
The statement was intended to be a legally binding promise because it was made before bids were invited therefore it is an express term of contract. (Lamebrain 2014111) There are some of the statements are not classified into terms in some circumstances. They are not part of the contract. Puffs, representations and opinions are not excluded from the contract. Puffs are the exaggerated or obviously insincere statements made by the prefer in an attempt to attract the other party, offered to enter into a contract.
Hence, puffs do not become part of the contract. Opinions are often correct and incorrect because the statements are from personal opinion or beliefs. They are not reliable and therefore they do not include in the contract. Offer use representations as the statement of facts when dealing or negotiating with a contract. Representation is a statement made by one party intended to be serious and intended to induce the other parties to enter into the contract but does not intend to be a binding promise even successfully engaged other parties onto a contract.
Therefore, representation can be concluded with does not form part of the contract. If any term was intended to be legally binding promise, it would be considered as an agreed promise. In the case of Oscar Chess Ltd v Williams [1957] 1 ALL RE 325, William took the document which showed that it was a 1948 model of car as representation. William did not have any knowledge about cars but the dealer was an expert in cars so the fact of car is 1939 model, hence the statement of the car was in 1948 was not intended to be a legally binding promise. Lamebrain 2014,112) Express terms are the term which were expressly agreed through writing or orally, or a combination of both as the parties have actually been declared or definitely stated. There are various ways to expressly agreed in term such as discussing, signing document or referring to a ticket or notice. There can be happened as disagreement over particular terms because there are differing interpretations whether the particular terms are included in the contract. In the case of L ‘Estrange v F Curaçao Ltd [1934] 2 KGB 394, L ‘Estrange accepted the offer to buy a cigarette vending machine from Curaçao Ltd.
Lagrange was bound by the terms since she had signed the agreement. The document had stated clearly that excluded any implied warranties or conditions and will not responsible for it. Lagrange signed the contract by just roughly read through the agreement. Regardless of she does not read the terms carefully but once she signs the agreement, she has the responsibility and agrees to be bound by the terms. (Lamebrain 2014, 115) There are two term of contract which are conditions and warranties.
They are part of the contract because they are intended to make the statement to be in a term of the contract. Conditions are important in the agreement because there are in the fundamental terms. If the condition does not fulfill by one of the parties, it can lead to terminate the contract and / or sue for damages. In the case of Associated Newspapers Ltd v Banks (1951) 83 CLC 322, the Associated Newspapers did not comply with the promise to publish Bank’s drawings on the front page of the comic section therefore Banks has the right to terminate the contract.
The drawings are not turned out on the front page but on 3rd page of comic section. Banks would not have agreed to the contract without the promise because promise is such important to him. Hence, the term of the interact is the promise to publish Bank’s cartoons on the front page of comic. (Lamebrain 2014, 113) In another aspect, warranties are the terms have lesser importance compare to conditions. If the warranty is breached, the injured party will only be able to sue for damages instead of terminating the contract.
In the case of Betting v Gee (1876) 1 CUB 183, Betting has require by the term to attend the rehearsals for six days was a mere warranty instead of a condition. This is because the whole contract would not effect by absence of Betting as Gee has not entitled to terminate the agreement due to Betting’s breach. (Lamebrain 2014114) The responsibility and promises made by the parties are included in contract. After the contract has made, the term could not be added. A new contract has to be added if there have any additional undertakings which it need to have all the necessity requirement of information.
In the case of Alley v Marlborough Court Ltd (1949) JIB 532;(1949) 1 All RE 127,Mr. and Ms Alley sued the hotel to recover the losses due to furs were stolen by negligence of the hotel’s maid. The agreement between Alleys and the hotel have completed before they aware of the notice. The later notice of additional terms could not be modified by the sights of the contractual parties therefore the statement in the notice is not able to become a term of the contract. Lamebrain 2014, 116) The document contained with a term made available to parties for contacting and it is sensible to be expected to contain contractual terms. At the time when the parties receive the document, they have directly agreed to the term even if they do not read or sign it. However, if the terms in the document are not sensible to be expected to contain contractual terms, the persons could be not to comply with the term only if there are reasonable attempt to do so. In the case of Causer v Browne (1952) VEIL 1, Causer took his wife’s dress for dry cleaning in Browne.
Causer did not notice and read the statement on the docket given by Browne. He asked for compensation from Browne for the ruined dress. The statement is not a term of the contract in this circumstance because the document for Causer did not apparently as a contractual document. Therefore, it is impossible for Causer to ask for compensation from Browne by his assuming that it is only an identifying docket but it could be another result if he notices the document. (Lamebrain 2014, 118) There is a term in contracts for sale of goods. In the Sale of Goods
Act, there is an implied term that seller does not have the right to sell the goods which are not correspond to the description to protects purchases. There is also an implied term that the goods are sold must have correspond quality to the sample goods. In addition, implied term also included as the service must be carried out with reasonable care and skill within reasonable time. In the case of LEG Thorns & Co Pity Ltd v Thomas Forthwith & Sons (Australia) Ltd (1956) SIR (NEWS) 81, Thorns has bought 50 drums of Underfoot oil from Thomas Forthwith.
The resistant to heat of drum of oil are found not correspond as the sample he Estes. Thorns could not claim from Forthwith because in the written contract, there is not contained of reference to a sample. (Lamebrain 2014,144) Steps: Apply the law to the facts of the question in a detailed and logical manner. The statement of the Extreme Printers was ‘the best thing’ was just a puff. It is not a term of contract. The word ‘best’ does not specify how effectively and efficiently the printers and hence it is just a statement use to attract other parties into the contracts.
Delicious Hamburgers has negotiated a contract for printed all the promotional materials for the next three years with Extreme Printers. Delicious Hamburgers clearly stated that it is term of the contract, not an opinion of statement as ensure that all materials delivered are without errors and Extreme Printers has guaranteed would be verified before delivery and there is a lawyer as witness. In this case, the representation is a term of contract as the statement is intended to be a binding promise.
Extreme Printers are attracted to the long term advantage of Delicious Hamburgers and as a result, they attached to the agreement and accepted the offer. The terms in the case study are conditions. The mistake of printing are due to Extreme Printers allowed a vacation student that lack of experience to print the tickets and they had not verified the scratch tickets before deliver. Extreme Printers are the cause of formation about Delicious Hamburgers have lose their credibility and suffered huge losses on prolonged lawsuit by customer which has scratched a Mad XX-7 .
Delicious Hamburgers would not agree to the contract without promise even Extreme Printers has stated in the contract as no responsibility for any damage caused by errors in printing or any of its employees. Therefore, Delicious Hamburgers have the right to terminate the contract and sue Extreme Printers or the damages or loss. PART B – Short answer question Determine how if a judge from a lower court has to follow the decision made by a judge in a higher court in Australia.
The doctrine of precedent is an elementary restriction on decision-making of judicial in Australia. If there is a facts and issue cases are similar to previously cases, the decision made must pay proper respect to past judicial. On another hand, it can be means that judges have been set by a limit to apply the reasoning of judges in past cases. In the earlier case, there is a legal basis on the latter ease and accordingly cases could be decided which is lower courts are bound to follow the decisions made by higher courts which higher than them in the same hierarchy.
Precedent is seen consistent but it also bringing complexity to the law. The courts have been decided millions of cases but it is rapidly difficult to find relevant past cases. A wrong past decision may cause to an unfair decision in latter cases. Judicial reasoning can be broken down into two parts which are rationed deciding and obiter dicta. Rationed deciding is the decision of the case which is the adjudication on the point of law and binding in the doctrine of recent on courts below in the court hierarchy.
