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Section . True / False Questions
1. False. In order to win a civil action the plaintiff (Peter) must establish on the balance of probabilities his case is more believable than the defendants (Customer)
. True. The bankruptcy act provides a comprehensive regime for dealing with individuals who are insolvent meaning they cannot pay their debts when they fall due.
. False. If a customer injures themselves on a business premises they may be able to sue under an action of Negligence. If the damaged to the customer was caused as a direct result of the employee than an action of Vicarious Liability could be taken.
4. False. Valid contracts can be either formal or simple contracts. A formal contract needs to be written in a special way.
5. False. Usually if payment by cheque is made, the contract would discharge when the funds are cleared, usually 7 10 working days. Unless the contract states by receipt of cheque etc.
6. False. A partnership is able to change to a company however a company can not change to a partnership.
7. False. If a supplier of goods & Services wishes to set up a minimum price below which Styleline is not to sell their product is resales price maintenance not horizontal price fixing. Resale Price maintenance is also deemed anti-competitive and prohibited by s.48
8. False. Under consumer protection legislation, a linked credit provider is liable for any representation made by the supplier to the borrower in relation to a tied loan contact.
. True. A guarentee is an implied condition in every contract under sec 5 of the trade practices act..
10. False. If the exclusion clause is likely to deceive or mislead the consumer than it would be in breach of the Trade Practices Act. Even an appropiatly worded clause would still be
Section Essay Question
4. The nature of tort law is based around civil wrongs rather than criminal wrongs as it aims to compensate the plaintiff for damages or wrongs which have occurred to them as a result of businesses actions. The importance of understanding tort law for businesses is that tort law covers a wide range of areas in business and with the ease and ever increasing risk of getting sued by customer makes tort law knowledge a must know for any business owner. Knowing your duty of care, legal responsibilities and defences enables business owners to stay on top of things and avoid actions against them due to their or their employee's actions or failure to action. Such areas that are included in tort law are negligence, vicarious liability etc.
5. All contracts of insurance are contracts of "utmost good faith" meaning that one of the parties involved are not in an equal bargaining position in respect to the possible risk involved. Insurance is a means for persons or business to protect and compensate themselves against the risk of loss, spreading the risk in other words. In order to assess the risk and calculate premiums the insured must disclose all information in regard to the risk being transferred, a duty of disclosure. The problems that can arise from these principals are if there are co-insured than failure to disclose all information or material can result in an innocent co-insured party to lose their rights. If information regarding the risk is false or not disclosed than the contract can be terminated and the insured receiving no payout.
Section 4 Problem Question
1. For a contract to exist it must have present an agreement (both offer and acceptance), intention to create legal relations and consideration. The conditions were all met when the consideration (finance approved) was made available. The offer was made on the 1 June 00 and acceptance on 10 June 00 with intention to create legal relations. Consideration was met on 4 June 00 meaning all conditions were met. The contract came into existence. on 4 June, 00.
. Peter and Joanne have no case against the original owners of the company. They made a valid contract and the property legally passed hands, let the buyer beware. Under the trade practices act because of the amount involved was so substancial they would not be classed as a consumer, and could not o for an action under consumer protection legislation. They probably would also not have a case against the other parties even though Dianne and ABE brokers do sell business for a living and they bought the business on the advice of Dianne the end result is that all she does is sell business and would not be capable of determining whether a business will be successful. They did seek advice from an accountant who advised against the sale but the bought the business anyway.
. Setting up a partnership has many advantages and disadvantages. The advantages are they are very cheap to form, more money and knowledge than a sole trader, not as much formalities and certain tax advantages. But on the downside there is the reoccurring problem of unlimited liability (the owners are totally liable for all their business debts), it is hard to sell a partners interest, unless agreed upon the partnership will dissolve on the death or bankruptcy of another party. I would recommend forming a company rather than a partnership as you can form a company with members and the fact that you get the comfort of limited liability.
4. Under the Business Names Act 16 where a business under a name other than, or more than the one containing the owner's surname & initials must be registered. As Styleline was already a company the name should have already been registered, but due to changes regarding members and maybe the address of the company the changes would have to be registered.
5. Joint tenancy is a type of relationship that can look similar to a partnership. Joint tenants have separate legal rights between themselves but are in a position of a single owner against the rest of the world. The two principles behind this type of relationship is the right to survivorship, meaning if one of the tenants die than the interest in property automatically transfers to the other joint tenants until there is only one survivor who then is the sole owner. And the "four unities" of possession, interest, title and time. This means that all joint tenants hold an identifiable equal amount of legal or equitable interest in the property. Joanne may want to enter this type of relationship as she has fulfilled the "four unities" by having equal amount of time, title, interest and possession as the other tenants and on the death of any of the other tenants she will be the sole owner of the property. But if Joanne does not want the title to pass in the case of death to the other owner than maybe tenants in common would be a better relationship for her.
6. There are other options to minimise a dispute going to court.
• Civil proceedings Where a board will hear both arguments and award on the balance of possibilities.
• Commercial arbitration Where an expert in the field would her the arguments and make decisions based on the information given.
• Company Ombudsman If there is a problem relating a company that cannot be resolved and ombudsman will do a formal investigation and try to find the problem and solve it.
• Mediation, conciliation, negotiation etc. A third party will hear both sides and make a decision on behalf of the parties. The third party may not be an expert on the field so this may not be the best option.
• Debt recovery organisation For outstanding debts a debt recovery will do the work of chasing up creditors for a small fee.
7. The terms I would expect form a variety of contracts would include, implied terms where the terms are not specified in the actual contraut both parties know of their existence. Credit and payment terms, stipulating when to pay the due amounts and how to pay them and the time frame in which to pay them on time. Any penalty rates for late payment, exemption clauses, priviacy acts, insured items any thing relating to the contract and what the parties have to do in order to keep a valid contract.
8. It is possible for a party to be held liable for another person's actions even if they were not at fault under vicarious liability. An employer may be held responsible for the negligent actions of an employee if the cause of the injury arose out of the course of employment. However seeing as though Steve was an independent contractor he would be regarded as principals and therefore is liable or his own actions, independent contractors are not covered under vicarous liability. As Steve breached the duty of care to install the blinds he would liable for a course of action regarding neglence. As an independent contractor he would have to have some form of public liability insurance to cover such an action. The customer would be successful in an action against Steve for the installation of the blinds as he failed to show a duty of care. Indepandant contractors are said to be in control of their own actions and do not follow the employers instructions but work on their own to finish the contract how they see fit in the time frame.
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