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Discuss About The Maxim Nordenfeldt Guns and Ammunition Company.

Punishment for Criminal Offenses

The tribe’s constitution has been reviewed and it is based on the guidelines that have been given by the legal system of Hart. A renowned philosopher named Hart from Britain gave a system of law that is based on the three parts. Hart had framed these set of provisions to assure that the functioning of the laws within the state is carried out in an efficient manner. These three provisions or rules have been given in the book written by him and it is known as “concept of law”. It includes the change rule, the adjudication rule, and recognition rule. The change rule is in association to address any ambiguity law or to assure the law is updated in relation to the requirements that are to be changed in the society. The adjudication rule is related in a way to address the problem in the society by the system of law. The recognition rule means to assure that law is equal for all the members of the society and it is maintaining the concept of consistency and certainty. They must have judges who are unbiased and a way to appeal against the verdict. A clause has been provided by which the provisions can be changed and new ones can be prepared in a proper way so that it can be ensured that the change rule has been imposed in the constitution. Thus, the changing natures of criminal activities also lead to change in punishment. A system of appeal should be there so that it can address the decisions that are given by the judges to incorporate the adjudication rule. This ensures that a criminal is prosecuted and an innocent person is not. Furthermore, a clause has been added to have the unbiased judges to look at the problems of the society. This ensures proper implementation of criminal penalties such a imprisonment.  A doctrine of precedent has been presented by which the decisions that have been made before must be considered to address the new problems to assure consistency and to incorporate the recognition rule. Furthermore, every member of the society has been exposed equally to the law through the constitution.


There are some penalties and punishments that are set out by the legal system to accuse any individual who is involved in the activity of crime. An individual must be involved in any crime to get sued or punished by the jurisdiction. The main objective of punishment is to pursue deterrence of that activity which has been done by an individual in the society and to show other people in the society the consequences of the crime. An example has been set out that in Singapore, a person who is in charge of rape is subjected to imprisonment of 16 years and 24 strokes of cane if assaulting sexually and raping a teenager. In case of murder, the punishment is the death penalty and it is compulsory for murder and it is stated in the first part of section 300. Further, it has been stated that the death penalty has not been imposed on those who are below the age of 18 or on the pregnant woman and on the other hand they are imposed with lifetime imprisonment. The severity of the sentence is different in the state of Australia because of the difference in jurisdictions and also of the belief and culture in Australia. A person committing rape is sentenced for fourteen years of imprisonment and a person who has committed murder is given life imprisonment with a non-parole period of years. The legal system of Hart states according to the related circumstances to the punishment for criminal offenses that the penalties must be decided as per the condition of the public. If the crime deterrence requires more punishment then it must be imposed for the betterment of the society. These penalties make the society better and fulfil the requirements of the society.

Case: Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd

In the case named Gumland Property Holdings Pty ltd.V Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237, the issue that is needed to find the landlord's right to gain damages that include damages or loss of bargain after the a term of the legal agreement that was breached by the tenant.

The court provided in the case named Shevill v Builders Licensing Board - [1982] HCA 47 that the lessor is allowed to collect the money owed form the lessee but they may not make a claim from future profits.

According to the case named Bettini v Gye (1876) 1 QBD 183, the court stated that as per the provisions of the contract, an injured party can rescind a legal agreement and can claim for damages if an essential breach is there or breach of certain important terms. Through these ethics, it is likely possible by the express rules in a legal agreement to provide a term as a condition, but it will not be the same as such express rules are not the same. It was not only done for supporting to rescind the contract that was approved by the lessee but also to provide power to improve those damages caused by the loss of bargain.

In line with the law of contract breach it was stated by the court in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd that in case of a serious breach in connection to terms which are not very essential, but had been agreed as essential terms the other party can make a claim for damages caused and repudiate the contract.

In relation to the above discussed rule, in Lombard North Central plc v Butterworth [1987] QB 527 at 535 the court ruled that a agreement between the parties prior to the contract been made with respect to classifying a term of a contract as essential, will make the breach of such term result in repudiation if claimed by the aggrieved party as well as damages.

In this case, a tenancy of the grocery was owed by the landlord in a shopping mall and the name of the grocery store was Transit Management Pty Ltd. Duffy Bros Fruit Market (Campbelltown) Pty Limited and it was the tenant who took the lease for fifteen years. Certain difficulties were faced by the tenant and this is the reason why he could not pay the rent. The landlord made the tenant agreed with the new lease and it was stated that he needs to have a subtenant and assure that no breach of the lease must take place in future. The decision that was provided by the district court was reversed by the court of appeal and it also stated that Gumland Property Holdings Pty Ltd, the new tenant has not been permitted to claim for the damages because an important term was not violated. Certainly, the High Court permitted the landlord’s appeal. It was stated by the court that the deed lease was not operating freely but it needs some changes in the terms of the lease. The parties stated the rent payment is an important term of the contract of the lease. Through the ethics of the case named Bettini v Gye the court mentioned that there was the breach of the condition because parties have used the perfect statements to make it a condition by identifying the purpose of it. The injured party has the right to claim for the compensation and revoke the contract when there is a breach of the condition.

Conclusion

Conclusion

The party can claim damages that were caused to them and can withdraw the contract when the condition of the contract has been breached. The court order the plaintiff to claim a compensation for the breach along with the legal fees as a remedy.

Case: Alati v Kruger 

ove-mentioned case, the issue is to find out whether the respondent had committed a misrepresentation that is said to be fraudulent.

Certain elements are there that is required to be recognized to have a legal claim for the misrepresentation.

In order to recognize misrepresentation, there must be an undue representation of fact and not the representation of the future opinions and it has been stated in the case named Bisset v Wilkinson.

The court illuminated in the case named Smith v Hughes that silence will not be taken into consideration as a type of misrepresentation or falsification unless the legal agreement is of the highest good faith.

According to the case named Horsfall v Thomas, there must be trust in the undue representation of the fact to establish misrepresentation. A party who is claiming for misrepresentation must prove it to the court that they are being forced to get in the contract by that person who is making the undue representation of the fact. A party cannot prove negligence without reliance on the undue representation to get in the contract.

Through the case named Derry v Peek, certain rules of the fraudulent misrepresentation has been evaluated. These elements include the representation of the fact is considered to be undue, it is known that it is false and intentionally making it to the party.

A party is prohibited by the section 18 of ACL for entering into a contract that is considered to be deceptive or misleading in the field of commerce and trade.

In the above-mentioned case, a fruit business was bought by the plaintiff on a premises that was on lease at the rate of 700$. It was suspected that the plaintiff was induced to get in the contract by fraudulent misrepresentation. He was said that there are earnings of $100 in this business.

The factors of misrepresentation were analysed in this case. It was held by the court that the representation that was done by the respondent was a representation of fact in this state. It was considered to be the representation of fact because it had the material value that was linked with it and was not an ordinary opinion. It was concluded by the court that the representation of the fact was false because there was no such earning of $100 a week in that business. It was seen that the plaintiff depended on the representation to enter into the legal agreement and therefore the inducement element was also satisfied. Therefore it was found by the court that the falsification had taken place. It was proved that there was a fraudulent misrepresentation as the factors of it proved that there was an undue representation of fact, believing it to be true and making it purposely to the party. Therefore the court stated that the contract must be rescinded and the applicant can claim for the damages under the Australian consumer law.

Case: Alati v Kruger

As per the Section 18 of the Australian consumer law, the defendants' conduct has been considered to be deceptive and misleading because the defendant had sold the business fraudulently to the applicant and the applicant has the right to claim for his damages.

Conclusion and remedies

It has been seen that every valid element of misrepresentation was fulfilled and the party was permitted to rescind the legal agreement and can claim compensation for his loss from the respondent because it was considered to be a misrepresentation that was said to be fraudulent. In this case the remedy involves the damages as well as a chance to rescind the contract.

In the given case the issue is to find out whether Pedro has the right to make a claim against Lisa so that he can claim compensation from her for breach of contract.


The main matter of this case is constructed on the rules of a restrictive covenant. The restrictive covenant can be the part of business contract and can be implemented by a party to safeguard their own interest by controlling the other parties from doing the same business. According to the case of Stenhouse Australia v Phillips the clause is implemented prevent a party to open the same type of business so that the confidential matters of the business cannot be used by the party and legitimate protection is provided to the business activity. A restrictive covenant helps to restrict the parties from carrying out a same form of business in a particular area if it seems necessary to do so in order to provide legitimate protection to the purchaser of the old business or the employer as per Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Company. In Lindner v Murdock's Garage (1950) 83 CLR 628  it had been stated that it is illegal to prevent a person from trading unless it is to ensure the legitimate interest of a business purchaser or employer.  Thus, it has been mentioned that no such restrictions will be enforced on the party if any kind of legal right is being violated of that individual. In addition as per Petrofina (Great Britain) Ltd v Martin [1966] 1 CH 146 certain limits have been imposed by the court to limit the condition of restrictions which include situation where the clause is seen to be illogical and ambiguous.

In the case of Lisa and Pedro contract has been made and it was decided that Lisa cannot open the same kind of business as Pedro in two years within Australia. Thus, Lisa is being restricted by the principle of Covenant. However it has been discussed in Lindner v Murdock's Garage that it is illegal to prevent a person from trading unless it is to ensure the legitimate interest of a business purchaser or employer. Further it has been provided that a restrictive covenant helps to restrict the parties from carrying out a same form of business in a particular area if it seems necessary to do so in order to provide legitimate protection to the purchaser of the old business or the employer as per Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Company. However, the clause prevents Lisa from carrying out business anywhere in Australia where the actual business is only in Victoria. Lisa is carrying out her business far from Victoria which will not affect the rights of Pedro.  This clause is therefore unreasonable and has not been implemented to provide legitimate protection to the purchaser of the old business. In case of an unreasonable clause the court will declare the clause as void. Where the clause has been declared as void by the court, it cannot be enforced. Thus Pedro cannot make a claim against Lisa.

Pedro has no right to sue Lisa. He thus has no right to claim compensation from Lisa for carrying on business as he clause is void. There is no remedy available for Pedro.

References

Alati v Kruger 1955 HCA 64; ALR 1047

Australian Competition and Consumer Act 2010 (Cth)

Bettini v Gye (1876) 1 QBD 183

Bisset v Wilkinson [1927] AC 177.

Conveyancing Act 1919 (NSW)

Derry v Peek [1889] UKHL 1

Gumland Property Holdings Pty ltd. V  Duffy Bros Fruit Market ( Campbelltown) Pty Ltd (2008) 234 CLR 237

Horsfall v Thomas [1862] 1 H&C 90

Hunt, Alan. "The ideology of law: Advances and problems in recent applications of the concept of ideology to the analysis of law." Consciousness and Ideology. (Routledge, 2017). 3-29. 

Land Council v Sanpine Pty Ltd (2007) 82 ALJR 345

Lindner v Murdock's Garage (1950) 83 CLR 628  

Lombard North Central plc v Butterworth [1987] QB 527

McCrudden, Christopher. "Legal research and the social sciences." Legal Theory and the Social Sciences. (Routledge, 2017). 149-167.

Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Company [1894] AC 535

Petrofina (Great Britain) Ltd v Martin [1966] 1 CH 146

Shevill v Builders Licensing Board - [1982] HCA 47

Smith v Hughes (1871) LR 6 QB 597

Stenhouse Australia v Phillips [1974] AC 391

Waldron, Jeremy. "Is the rule of law an essentially contested concept (in Florida)?." The Rule of Law and the Separation of Powers. (Routledge, 2017). 117-144.

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