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1. Was it a term of the contract between Mikaela and Tower Flours that the almond flour would be gluten free? 

2. Was there an implied term in Dan and Jacob’s contract with Mikaela, that their wedding cake would be gluten-free?  

3. Was the icing colour a condition or a warranty of the contract?  (3 marks)

4. Is Mikaela still responsible for the icing being the wrong colour on Kimiko’s cake? (6marks)

Question:

1. A contract is a legally enforceable promise. Such promise is usually for the purchase of a commodity or for service or job rendered. If one party breaks an agreement; the other party can sue that party for breach of the contract. However, to win a breach of contract, the complainant will have to prove the breach beyond a reasonable doubt. The case between Mikaela and Tower Flours shows that there was an oral contract. When Mikaela called Tower Flours and spoke to Ricky, she requested to know if the almond flour they were selling was gluten-free. Ricky's answer in response to her question was that the flour was surely gluten-free. Therefore, Mikaela placed her order knowing that Tower Flours will only supply her with gluten-free flour. It means that was to buy almond flour from Tower Flours on the condition that it was gluten-free. On the other hand, Tower Flours supplied Mikaela with almond flour that was not gluten-free; hence, breaching the agreement they had with Mikaela. Based on the telephone agreement between Mikaela and Tower Flours, the contract was an oral agreement.

An oral contract is as valid as written contract, however, in a dispute, it is not easy to prove the agreement upon conditions of the contract. The existence of the valid contract includes elements such as offer and acceptance. Offer is an intention to enter a contract. The conversation between Mikaela and Ricky shows that there was the intention for them to enter into a contract. On the other hand, acceptance means that the parties have genuinely agreed to all the contract important terms. This case shows that Mikaela agreed to buy gluten-free flour. Similarly, Tower Flours agreed to supply the same. This shows that there was acceptance between these two parties.

Conversely, under nonconformity remedies, Mikaela can decide to take legal action against Tower Flours. It is because the goods they supplied failed to conform to her request. The law provides the buyer with two remedies. The buyer may decide to call off the sale and return the goods to the seller or she may keep the goods and ask to be paid damages. In this case, Mikaela can decide to seek for damages caused to her by the nonconforming flour from Tower Flours. However, for one to recover for breach, a party must prove that the other party causes damages to them in one way or the other. Damages may include loss of money or time.  Generally, the breaching party must pay for an expense as a result of the damage. On the other hand, the breaching party can get ordered to pay the punitive damage.

2. An implied term is used to refer to a mutual agreement and intent to promise between parties. It consists of obligations that arise from a mutual a code and intention to guarantee, which have not been orally expressed.  The implied term is misleading because, in law, a contract implied does not have requirements of a true contract. The implied law is also referred as quasi-contract. An implied contract relies on a substance for its being; therefore, for an implied term to exist there must be some action of a party, for them to get bound. Therefore, the contract between Dan and Jacob and Mikaela shows that there was implied term. The reason being that most of Mikaela’s customers always ask for gluten-free cakes, therefore, it was logical for her to know that the cake she was to bake for Dan and Jacob was to be gluten free. Also, Dan and Jacob knew that the cake they were to get from Mikaela was gluten free as they are known for supplying gluten free cakes.  

Answer:

In fact a contract implied is not expressed by any party; however, it gets suggested from facts and situations that show a mutual intent to contract. In reality, implied contract does not arise contrary to either law or the express affirmation of the parties. In law, implied term are evident in that they cannot get predicted on the consent of the parties, but, somewhat, exist regardless of consent. Terms can get implied into a contract when none of the parties has expressed all material terms either orally or in writing. However, it is hard to persuade the court that terms should get implied. The court requires evidence to show that a term should get implied, and also the content of the term should be precise. Consequently, the courts are ready to imply terms when required so that to provide effectiveness to a business contract. The courts also are willing to provide effectiveness to the contract where it would be so evident provided that the term is sensible and fair, capable of obvious expression and does not differ with any express term.  The circumstances through which Dan and Jack got into the contract with Mikaela is obvious that they expected nothing other than a cake without gluten. It was their wedding day and they could not have afforded to spoil it under any circumstance. Therefore, in the back of their mind, they knew that the cake will be gluten free. It is the same reason why they requested Mikaela because they knew that she provides gluten free cakes.

3. The condition is a term that must get fulfilled to make the contract go through. A condition can either be oral or written as legally required. It forms the basis of the contract and its breach is irreversible to the distressed party. It gives the aggrieved party the right to abandon the contract, decline to acknowledge the goods, and even get back the payment. In such events, the aggrieved will not be legally liable to proceed to buy the product. The condition is a promise that one party gives to the other party that she will perform the duty as requested. Therefore, referring to the scenario between Mikaela and Dan and Jack, the innocent party is Dan and Jack. This can get referred as implied condition under Section 14 of the Sales of Goods Act 1979, which states that “goods sold must be of satisfactory”. Besides, the consequence of the whole breach goes back to the root of the contract, which got breached by Mikaela. However, a breach of condition does not by default cause a contract to be revoked; but, provides the aggrieved with a choice on how to continue. 

4. Every time there is a sale of goods and services, the involved parties get into contract. When a seller breaches an agreement to sell the right product as ordered by the seller he becomes responsible for the breach. For example, Kimiko ordered a chocolate cake covered with blue and purple colored icing, but instead, Mikaela sold to them a chocolate cake covered with blue and green icing. It simply means that she violated the agreement. Because of this, Kimiko can decide to sue Mikaela as stated under Uniform Commercial Code breach of contract. Besides, where the buyer is compelled to treat the breach of condition as a breach of warranty, the buyer cannot reject the goods. However, the buyer can take legal action against the seller for the damages for warranty. Additionally, Article 35.1 of the CISG that talks about contract requirements for conformity state that: "The seller must deliver goods of quality, quantity, and description as required by the contract, and which are packaged according to the requirement of the contract".  Moreover, Section 14 of the Sales of Goods Act 1979 that talks about satisfactory quality can help Kimiko to use the following options against Mikaela when claiming the damage. (1) They may repudiate the agreement and claim damages and recession. The recession may help him recover the payment on the cake. (2) He may recover damages that also include time wastage. Besides, he may decide to accept Mikaela's promise to put the required icing colors within the stipulated time.

On the other hand, Mikaela may refuse to accept the liability because Kimiko accepted the product without ascertaining that the cake was non-conformity. Acceptance of goods by the buyer prevents refusal of the goods accepted. Conversely, if the acceptance was made with the awareness of non-conformant, then the contract cannot get canceled unless the acceptance was on the sensible assumption that the nonconformity would get cured within a reasonable time.  Other than that, after discovering the fault, the buyer must within a reasonable time notify the seller about the breach or else the buyer may be disqualified from the remedy. Acceptance of goods also occurs when the buyer fails to make an effective rejection; however, such acceptance does not happen until the buyer has had a reasonable opportunity to inspect them. Finally, Mikaela’s putting the sign that says “we accept no responsibility for breach of any warranty” does not have any role in the agreement that Kimiko and Mikaela entered into, and therefore, should avoid it and claim for damages. Mikaela did not mention it during the oral contract they had and she should have performed her duty as they agreed. The sign does not make any form of contract because it was never mentioned nor can it be used as a written contract.  

References:

Adams, Kristen David, and Candace M. Zierdt. 2016. "International Sales of Goods." Business Lawyer 71, no. 4: 1345-1356.

Carter, J., & Courtney, W. (2016). Good Faith In Contracts: Is there an Implied Promise to Act Honestly?. Cambridge Law Journal, 75(3), 608-619.

De Elizalde, F. (2017). Should the Implied Term Concerning Quality Be Generalized? Present and Future of the Principle of Conformity in Europe. European Review Of Private Law, 25(1), 71-107.

Djieufack, Roland. 2016. "The Seller's Liability for the Non-Conformity of Goods in a Contract of Sale under the OHADA Uniform Act on General Commercial Law: A Critical Analysis." Journal Of African Law 60, no. 3: 469-490.

Duhl, G. M. (2010). International Sale of Goods. Business Lawyer, 65(4), 1313-1324.

Fišer-Šobot, S. (2011). Non-conformity of the Goods for which the Seller is not Liable. Proceedings Of Novi Sad Faculty Of Law / Zbornik Radova Pravnog Fakulteta, Novi Sad, 45(2), 327-340.

Olazábal, A. M., Emerson, R. W., Turner, K. D., & Sacasas, R. (2012). Global Sales Law: An Analysis of Recent CISG Precedents in U.S. Courts 2004-2012. Business Lawyer, 67(4), 1351-1382.

Ruud, J. K., Ruud, W. N., & Moussavi, F. (2017). You've Got A Deal! Using the Film Draft Day to Teach Fundamental Contract Law and Analytical Skills. Journal Of Legal Studies Education, 34(1), 41-61.

Stewart, L. S. (2016). Back to the Future: Renewing Strict Product Liability in Florida. Florida Bar Journal, 90(7), 24-29.

Thomas, S. (2014). The Development of the Implied Terms on Quantity in the Law of Sale of Goods. Journal Of Legal History, 35(3), 281-318.

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