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Discussion of Case 1: Duress and Contractual Enforceability

Discuss about the Promissory and Proprietary Estoppel.

The issue of the case is to analyse whether the agreement signed between Tom and Susan was valid in nature or not. It has been observed in the case that prior to the marriage, Tom asked Susan to sign a document and the same contained certain terms and Susan put her signature on the document. The conditions of the agreement were that if the marriage between the two has broken, Susan will get only $100.000. After five years of happy conjugal life when the marriage was dissolved, Susan get the contracted money only and her husband denied to give her other allowances.

The main theme of the case has concerned the prerequisite of duress (Feldman 2015). It is a provision under the contract law that states the grounds of cancellation of the enforceability of contractual compulsions. It is a sort of protection to the contracting party who has been forced to give his consent over certain agreements. When a person forced to sign a contract because the other party to the contract have threatened him to sign the same, the legality of the agreement becomes unenforceable (Tamblyn 2017). Necessary provisions regarding duress has been engraved under Section 50 of the Australian Consumer Act. The term duress is applicable when one party to a contract signed an agreement forcefully and the other party had generated threat. It has been observed in Barton v Armstrong [1973] UKPC 27 that Alexander had threatened Barton to kill him if he had not paid a certain amount of money. Privy Council cancelled the validity of the contract on the ground of duress. In Skeate v Beale [1840] 11 Ad & El 983, it was observed that the tenant became agree with the repayment when the property owner threatened to sell all his goods (Fried 2015).

In the given case study, it has been observed that Tom had threatened Susan that if she did not give her consent over the agreement, he will not marry her. Therefore, it is observed that it attracts the provision of threat, predominantly mental threat. It has been observed that the circumstances compelled her to sign the agreement. One of the terms of the valid contract is free consent. In this case, there was no free consent present on behalf of Susan and she has been forced to sign the document.

Discussion of Case 2: Promissory Estoppel and Contractual Obligations

The issue in the case is whether Steve is bound by law to buy the car from Jason. It has been observed in this case that Steve was searching for a turbo engine car and Jason had installed all the requirements of Steve and Steve told him that he would buy the car only after the fulfilment of all the desires. It has been observed that Jason had installed all the requirements and after this too, Steve was refused to buy the car.

The alleged matter of the case is attracting the provision of the promissory estoppels (Lee 2015). According to this legal doctrine if a promise had been made to a person, it is not essential that one should pursue all the formal deliberation and the promise maker has to keep the same in case the promisee relied on the promise (Robertson 2014). Under the Australian Contract law, provision of promissory estoppels has been engraved. The main essential of the doctrine are:

  • A promise should have to be made by one party;
  • The other party must rely on the terms of the promise;
  • The outcome of such reliance shall bear detrimental effect.

In the present case, it has been observed that Steve was looking for a car and came across the advertisement of Jason and went to inspect the car for several times (Price 2013). It has been observed that he made a promise to Jason that if all his desires regarding the car can be fulfilled, he will buy the car. Relying on the facts of the case, Jason had installed the requirements and invested certain amount of money. However, Steve, on later stage, denied buying the car. Here the law of promissory estoppels will be applicable (Mungan and Seidenfeld 2016).

The major issues of the case are whether Carl has done any negligent work or not and whether Harry can have any defence against Carl or not. It has been observed in this case that Carl is a fisherman and a sushi chef. Therefore, it is no doubt to state that he bears certain responsibilities regarding the same and to take care of his duties with all aspects.

The matter of the case is attracting the provision of negligence. In Australia, the term negligence has been defined under the stipulation of Torts law. There are certain values that will constitute the negligence. It has been mentioned under the Australian Act that if the defendant had failed to perform his duties properly and the outcome of the same cause harm to the other person. One of the historical case regarding the same is Donoghue v Stevenson [1932] AC 562 where it has been proved that the manufacturer has owed certain duties to the customer and if he failed, he will be liable for the same. The principle regarding the breach of duties was also observed in case of Vaughan v Menlove (1837) 3 Bing. N.C. 467.

Discussion of Case 3: Negligence and Voluntary Assumption of Risk

In this case, it has been stated that Carl was a chef but not skilled one. Harry was a friend of him. Carl served a fish dish to him without followed the rules regarding the cooking of the fish. Carl was failed to inspect the nature of the fish and he had not even clean the fish properly. It has been observed that Harry became ill by consuming the poisonous fish.

Law that any person may sue the defendant before the competent court of jurisdiction and claim damage regarding the same has provided it. However, law also provides certain defences for the interest of the defendant. In this case, Harry knew the fact that Carl was not a skilled chef and therefore, there are certain risks regarding the recipe made by him. Therefore provision of voluntary assumption of risk can be applied to the victim. The provision regarding the same has been engraved under section 16 and 17 of the Civil Liability Act.

It is no doubt to state that the activity of Carl has attracted the provision of the negligence, however, he has certain defences available against the victim.

The main issue of the present case is to decide whether Betty accrues any right under the Australian Consumer Law. The facts of the case depict that an advertisement was made on behalf of Apple I-phone that consists of certain features of the phone. The features posted on the advertisement attracted Betty and she had ordered the same. However, when she gets the product, she observed that the quality of the same is inferior in nature to that of the advertisement.

There are certain necessary rules mentioned under the Australian Consumer Act regarding the same matter and in this case the provision of misleading or deceptive advertisement will be applied (Richards 2013). It has been mentioned under section 18 of the Consumer law that if a person sustain certain injury regarding the deceptive advertisement, the company will be held liable under this provision. The Australian High court has confirmed the necessity of section 18 of ACL in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54. Certain provision of section 29 will also be applied here. The main theme of this section is to go against the false and misleading representation made against any goods. Provision of section 35 regarding bait advertisements will also be applied here.

It has been observed in this case that Betty has ordered an Apple set based on an advertisement and the set has been delivered to her. After releasing the set form the package, Betty realised that the set is different than the advertised one and it is inferior in quality. Therefore, Betty can claim damage under section 18 of the Australian Consumer law. It has also been proved that a misleading representation has been made in this case. The provision of the case is also attracts the provision  of the statutory duties also and therefore, the section 56 of the Australian Consumer Law will also applicable here.

Conclusion:

Therefore, it can be stated that Betty accrues right under section 18, 29, 35 and 49 of the Australian Consumer Law regarding the same.

Reference:

Faerber, A.E. and Kreling, D.H., 2014. Content analysis of false and misleading claims in television advertising for prescription and nonprescription drugs. Journal of general internal medicine, 29(1), pp.110-118.

Feldman, S.W., 2015. Pre-Dispute Arbitration Agreements, Freedom of Contract, and the Economic Duress Defense: A Critique of Three Commentaries. Clev. St. L. Rev., 64, p.37.

Fried, C., 2015. Contract as promise: A theory of contractual obligation. Oxford University Press, USA.

Kim, N.S., 2014. Situational Duress and the Aberrance of Electronic Contracts. Chi.-Kent L. Rev., 89, p.265.

Lee, R., 2015. Promissory Estoppel and Proprietary Estoppel: A Response to the Myth of a Unifying Approach. King's Student L. Rev., 6, p.iii.

Mungan, M.C. and Seidenfeld, M., 2016. Investments to Make Threats Credible, Rent-Seeking, and Duress. Supreme Court Economic Review, 23(1), pp.341-351.

Price, W.N., 2013. Legal implications of an ethical duty to search for genetic incidental findings. The American Journal of Bioethics, 13(2), pp.48-49.

Richards, J., 2013. Deceptive advertising: Behavioral study of a legal concept. Routledge.

Robertson, A., 2014. Three Models of Promissory Estoppel. Browser Download This Paper.

Tamblyn, N., 2017. The Law of Duress and Necessity: Crime, Tort, Contract. Routledge.

Velasco, J., 2014. A Defense of the Corporate Law Duty of Care.

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