Securities Regulation Essay: Cases And Materials.

Essential Terms of Contract

Discuss about the Securities Regulation for Cases and Materials.

Thelonious owns Monk’s Mood Music and running a successful business. However in present days he lost his significant in market share and therefore he decided to embrace digital marketing strategies and plan to re-launch the business as MMMJazz which will be a premier online store for the true jazz lover. Now according to the business structure he needs to use the electronic transaction act and also form a valid contract for running the business.

The Australian contract law defines the contract as legal relationship where legal enforcement of promise has been made freely by the parties with the intention to enter into a contract. The English contract law has made a specific statutory modification of principles where it helps to make proper contract for the parties. In Australia a contract should carry six basic elements which help to form the contract which includes agreement, consideration, capacity, intention to be legally bound, formalities and certainty[1].

The agreement is the most essential part in the contract where both of the parties consider the existence of the agreement. One party will offer the consideration while other party will accept it. Therefore when the party accepts the offer then they will be bound to follow the terms of the contract. However the first party has the right to withdrawal the offer[2].

The parties should have the legal capacity to enter into the contractual relationship. Therefore minor, unsound mind people never able to enter in a legal contract. The person must be sound mind who has the capacity to enter into the contract[3].

The consideration should present when the both parties entering into the contract. When a person make the promise that means he or she is expecting something of value as an exchange of the promise. Without the enforcement of the promise of contract it is not valid whether it is money or goods or a promise.

According to the Australian contract law the parties should have intention to enter into a legally valid contract which must consist of lawful matters. If the parties has contract for an invalid consideration then it will be treated as illegal or invalid contract[4].

The contract should satisfy all the standards of the legally binding terms because if any issue arises when the contract is formed then it will be invalid. Therefore the contract can be made orally or written or through any electronic media.

Different types of Express terms

The certainty of the contract should be sufficient where the rights and obligation of both parties will apply according to the relevant matters there should be a particular time frame for complete the contract[5].

There are some other incorporated terms are also applied in the contract. In the implied terms the party wants to add extra terms in that agreement where it define notice or delivery of any things to other party or related to the business. The implied terms to the both parties about the intention to form the contract and the different legal effects will applicable for the parties according to the Australian contract law. The express terms help to make the contract in legal and it should contain of promissory statement by written or verbal ways[6]. The implied terms define the in fact terms where the intention of the parties establishes before they enter into the contract. It can have conditions, warranties or intermediate to the contract[7].

Condition is helps to implicates mutual decisions of the parties in the contract. According to the terms when one party refused to accept the condition after the formation of the contract then he will breach the terms and the innocent party according to the breach of contract claim the compensations. In the case of Poussard v Spiers (1876) the court has found that the parties has failed to satisfy the terms of conditions therefore the contract has been breached and compensation has claimed [8].

The term warranty establishes assurance where both of the parties provide guarantees and promises to each other. When the party is implicated the warranties into the contract, the fact of the statement should fair according to the law of enforcement and must mentioned about a warranty. It also added legal remedy for those parties who will breach the contract. Therefore when warranty is made by the party who offering the proposal should agree with the terms and the party who accept the offers can claim the compensation which is the warranty of the contract is breached. One of the famous case in Clark v Macourt [2013][9] the court has described that one party has breach the terms of warranties while he selling the products and due to the dissatisfaction of the terms the buyer claim the damages where he was awarded with compensation[10].

Another term is intermediate terms where it will recognize breach of contract when the contract has been terminated. The contract should mention about the intermediate terms which define the clauses where anybody can terminate the contract if the nature of the rules has been breached. In a contract the promisee is liable to make the statement about the substantial performance of the agreement in the contract then for any absence of such terms will make the other party terminate the contract[11]. The incorporated terms of the contract basically helps to add extra consequences in that agreement which can be mentioned as per notice or the course of the dealings when the incorporated terms are added buy notice[12]. It should mentioned about the time and the knowledge of the contract that it will helps to set a particular period from the formation of the contract until it applications and the knowledge should mention about the terms which should follow by the other parties in the course of dealing while they entering into the contract for running the business by the abiding terms which is incorporated of the contract[13].

The Electronic Transaction Act

Therefore when Thelonious start his new business he should follow all the contractual terms where the essentials of the terms should be followed and in some cases the incorporated terms are also important to follow before he will enter with other parties into a contract and the consumers who will use the services they will also have the knowledge about the using the online services and performed according to the consequences[14].

The electronic transaction act is implied by the Australian government for those people who are running their business through the electronic transaction and communicate with the consumer for interest of the business[15]. The Electronic Transaction Act 1999 is introduced to help the transaction by providing information handwritten signature, record of written information and document in material form [16]. The electronic transaction is quite common nowadays for running a business. According to the Australian and International law, electronic signature is significant as valid way of Executive agreements. Therefore when a person was intent to running a business through online then the electronic transaction act protects the authentication and verification of the business. When a contract has been forms it should be valid and must satisfied all the essential terms of the contract. Therefore in the electronic signature is one of the important legal enforceable parts in the electronic transactions[17].

The electronic contract will be recognized as a valid agreement when the contract is made with the appropriate elements and can be accessed after the execution and the parties should make the mutual consent where they expressly or impliedly accept the terms and received every information through electronically. While the using of online services the person who is running the business must bound by the communication with the consumers where they make their consent for using the service. Sometimes providing the evidence creates some problems if the elements are not enough to satisfy all the term of contract and in the transaction of the parties fail to deal with each other. It only occurs because the only way of communication is electronic application[18].

When the transactions are used then the electronic signature also recognized as a valid way of transaction or an electronic document. Therefore when someone is using the electronic signature then the received information should be consultant by the recipient through electronically. Through the electronic signature the method of the electronic transaction helps to provide information and approval of the electronic documents signed the parties who are entering into the contract must get the knowledge and circumstances of the transactions which is reliable and appropriated for the transactions and the purposes and it will be also recognized as a evidence of the transaction[19].

The method of signing of electronic signatures is recognized as appropriate while the electronic documents was generated and it helps to improve the contents of the electronic document by self evident when the parties are entering into the electronic service[20].

The electronic signature is helpful for the electronic transactions. Sometimes it make difficulties because according to the performance of the contract the proof of Identity of the signor who sign the documents is required but not possible to witnessed by another person. In the traditional transactions the documents of the contract possible to altered after it is signed before some issues makes risk in the electronic signature but it can be possible to minimize those risks [21].

The digital signature is another part of the electronic signature where it is defined a term while the parties enter into the contract. Therefore the digital signature helps to identify different verification code where it will generate the services private and publicly for the verification purposes. The private key only applied for the person who is taking the service from the online or electronic communication and public key helps to share the details in publicly and anyone can visit the digital signature of the document.[22] In the electronic transaction there are several beach can identified because the use of the private key is not always accurate which may face the legal challenges[23].

If any person is required to given handwritten signature then another person can fraudulently use that signature and accurate which make the legal challenges. If any person is required to give inheritance signature then another person can fraudulently use that signature and allow for use the services. Therefore digital signature sometimes fail to identify the electric signature where the public key Cryptography should being kept secret. It is only accessible for someone who intends to digitally sign the document. Therefore if any cyber attack or data breached on the private key the person may face the consequences[24].

For avoiding the risk of Cyber attack or data breach several verification and authentication techniques has been available for the users who are using the online services. The digital signature software products sometimes help to measure the security when the user signing on the online process. Therefore other securities can be identified by the use of biometric identification and authentication, chain of custody features, timestamps, email and IP address tracking. Therefore the certification authority only able to identify the verification of the users where is secured the online databases and issued a digital signature certificate or a unique ID. By the application of that ID the user can communicate with the online service[25].

It is the duty of the parties who are entering in the electronic transaction must look for the every secured identification of the online transaction for avoiding the cyber attack. The software achieving capability is also an important issue while using the digital signature because its achieving system has the capability to retrieving everyday data from any dispute which can arise with the agreement was signed in the months or years after the fact[26].

Therefore the certification authority can verify the signor who entering into the contract and use different verification techniques for inherent. In the digital signature software which store all the information about the Signor. For protecting the privacy through the electronic transaction act the government also introduces the privacy act which protects private and personal information while using the digital signature process. The agreement which has been made by the electronic media is also protected under the privacy act of Australia[27].

While using the electronic transactions the privacy and security is one of the important issues can the business man should face because while the consumers are using the Internet or online shopping, they are also required for proper privacy and security from every hackers and other personal database[28]. It is the duty of the owner of the business that he will protect the personal information, documentation, identification and the digital signature while the consumer using the service. Another issue that can be arising in the online transaction is the copyright and trademark. The scope of copyright affects the essential legal terms where the online technologies never identify the doctrine of copyright act in the electronic transaction[29].

The trademark is the legal and valid entity for the person who on the business if he using some name or a logo related the authentication of the online shopping online business. It should be protected under the copyright and Trademark acts because otherwise someone will use the logo and name and misrepresent the business value by distinct trademarks[30]. In the online business the structure of the processing should follow up online term & condition policies and other relevant laws. Each and every ethical dilemma should be followed by the consumer and the owner of the business because electronic transactions sometimes arise different issues like online contract, record retention, obligations of import & export regulations, exchange control regulations and other data protection laws. Before someone entering into the e-commerce domain we should obtain the registered trademark for protect the copyright of that online site[31]. The terms and conditions of the online site should be displayed while the user using the online transactions it is the duty of the owner of the online transaction that every records about the selling and buying process of the product to the online transaction[32].

Conclusion

Therefore according to the law of contract breach of the terms can terminate the contract the misrepresentation of the facts of the statements by any parties can arise legal obligations. Therefore if any damage occurs due to the misrepresentation, the opposite party can terminate the contract and claim the compensation. If any terms has been beached therefore it is the duty of the both parties that they will follow all the terms and process the electronic transaction for avoiding any miss representation of breach related to the contract[33].

Thelonius can apply those advices while he will start up his online business.

Reference

Butler, Desmond, et al. "Contract Law Case Book." (2013).

Clark v Macourt [2013] HCA 56

Coffee Jr, John C., Hillary Sale, and M. Todd Henderson. "Securities regulation: Cases and materials." (2015).

Freedland, Mark, et al., eds. The contract of employment. Oxford University Press, 2016.

Gergen, Mark P. "Negligent misrepresentation as contract." (2013).

Knapp, Charles L., Nathan M. Crystal, and Harry G. Prince. Problems in Contract Law: cases and materials. Wolters Kluwer Law & Business, 2016.

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

Meredith, Jessica, Rose Kenney, and Eden Hatzvi. "Cash Use in Australia." RBA Bulletin, June (2014): 43-54.

O'Sullivan, Janet, and Jonathan Hilliard. The law of contract. Oxford University Press, 2016.