Formation Of Contract Under Commercial Law - Myassignmenthelp.Com S

Question: Discuss about the Formation of contract under Commercial Law Answer: FORMATION OF CONTRACT Formation of contracts Q # Law that applies explained How this will affect your business: You may add facts here. What is your aim in dealing with this issue Your policy statement and/or process to achieve the aim Mark Leave blank 1. Formation of contract 1. Advertisement: the first thing in the business policy is to form a proper advertisement with short details which include the policy objectives, time period of policy and the cost they are offering in the contract[1]. The advertisement is the basic thing to attract the people in first look which must be formed in an innovative ways. 2. Dealing with the enquiries: this is a process where the customers always enquire the details of the contract before they accept they accept the offers. The other party who is willing to form the business policy with the customers must give the proper details and must mentioned about every details of the business policy in the contract. The customers must look after the far and details of the contract and the other party who giving the proposal must clear every details of the terms and conditions of the business policy. 3. A process for making offers including: when any contract is formed the both parties must clear their details about the contract where they must include the offers which are offering to the customer. The business policy represents details of the contract about the offer. In the contract the party who giving the offer to the customer must include the counting offers of the contract where they deal with the counter offer if the parties want to negotiate the offer and automatically [2]reject the offer as per the acceptance of that. The counter offer always gives the rights to the both party where they can negotiate their terms with the opposite party and if the terms does not satisfy the party he can reject the offer. 4. The form of accept the offer: a contract can be form in written or verbally. Therefore the parties must have mutual consent that how they made the contract with each other. The both ways can give the priorities to the parties to form the contract. When the contract is formed through a written document, the party who is giving the offer must include all the details of the contract which helps them to form a fair contract and also it must represent their legal intension through the agreement. A business policy always formed through an agreement which helps the parties to deal with the business proposal. The business policy always formed for set a goal for the company for running their business in a smooth way and also gives them the legal value of the contract. The governing body or the board of the managements always formed the contract as per their terms and conditions of the company. As per the policy the company makes their decisions in every business purposes[3] The business policy shows the basic guidelines to every corporate organization to maintain all the duties and the responsibilities for running their business. In the policy it is must include the some details of policies which helps to format the contract with the customers 2 Intention to create legal relations When a contract has been formed it must create legal intension because without the legal conducts the contract will be void The party who is giving the offer must create the contract in a legal way and the contents also represent the legal objectives of the contract. The contract always include the terms of counter offers where the parties can negotiate the terms and if there is any situation has arise that the customer want to reject the contract for a valid reason then he will can do that in a legal way. The common contract law gives the legislature to form the contract in a legal way. 3. Consideration The consideration is the legal values in the contract where the party who give the offer must make promise to another party when they forming the contract. The consideration only made when the one party promise to fulfil the offer to another party However, if A formed a contract with B where it must include the B will give $4000 to A for buying a guitar from him. Here, the $4000 is the consideration of B and the guitar is the consideration of A. It is the form of the common contract law where the consideration has been made before the contract. The doctrine of consideration always give the irrelevancy in many jurisdictions where the commercial litigation relation represents between the given promise and the reflection which is given in the deed and it must includes in the contractual consideration. If there is any lack of consideration then the contract will be void. The promisee must give the consideration to the promisor where it should be sufficient and can be illusory. Consideration always gives the present reflection when the contract had been formed. The duties which includes in the contract are never consider as a consideration of the contract. The promisor never gives the part payment which also recognize as a consideration but it never represents good consideration. 4. Electronic Transaction The Electronic Transaction Act 2002[4] gives the laws and legislature to use the electronic technology for the transaction in business for make the communication with the customers. This law gives the permission to use the email services and any other relevant electronic technologies as per the need for running the business[5] a) The act allows the employees in the business company to email the important documents which related to the business purposes. The email or electronic technology is only usable when the party or the customers [6]give the access of the using the facility to form the contract. It is very usable and consume less time. Through an email any contract can be formed in anywhere with the customers or the parties[7]. A contract can be formed in writing or verbally therefore it can be stated that the email is also a legal way to form the contract between the parties. b) In any business purpose the Electronic Transaction Act 2002 gives the access of using the electronic technology to form the contract. It represents an empowering act where the email is uses as a substitute of paper. It is only allowed the accessibility as per the given order by the parties. The both parties must have the mutual consent to form the contract through the electronic technology. VITIATING ELEMENTS Minor As per the minor contract act, the minors can enter into a contract where they have rights to form the contract as per the principles of contract. The minors who are not complete the age of 18 years but the term of entering into the contract is not enforceable. As per the Minors Contract Act 1969 gives the legislature to the minors to enter into a valid contract where they can legally became one of the party for making the business policy and runs the business. Question Number Factual situation Law applying to these facts Conclusion Minors 1. The minors can accept the offer and entered in to a contract. As per the law it is not enforceable in the legislation but it can be treated as enforceable when the contract is formed with the minor in the sectors of life insurance and employment contract.[8] The Minors Contract Act 1969 gives the legislation to form a contract with minors The both contracts are enforceable against the minors to enter into the contract. 2. The court must give the approval to enter into the contract with the minor. The court approval application must be given by the minor or their guardians and the contract will became enforceable when the minor became adult or aged 18 years. The contract with the minors never enforceable if the intension and the conducts are lawful as per the Minors Contract Act A business may contract with a minor which will not be enforceable. 3. The party can forms the contract with the minors and it must be unenforceable against the minor whereas, the minors can enforce the agreement against another party if they recognize that the agreement was not satisfying the term of valid contract. If the party want to form a contract in a life insurance agreement or want to hire the minor as an employee for the business and if the guardian made the complaint against the party then the court will decide whether enforceable against the minor or not. The sec 6 of the Minors Contract Act 1969 If the court find that the terms of the contract is against the enforceable law then the contract can be disposed. Misrepresentation The conversation and statement Law relating to the statement Set out the conversation N/A 1. 1. An email between an employee and a customer negotiating a contract Subject: negotiation for misrepresentation of contract Dear X customer, We have already received your email about the misrepresentation about the products and you have found some disputes in the product. In the mail you have mentioned that the delivered product was not same as shown to you when you buy that. As per your complaint we have found that there has been a dispute has arrived from us to deliver the products. However as per your mail you want to refund back all the money which you have given to us for the product. We have already investigated the whole process of deliver the goods and according to your mail the product was not working properly. You have also mentioned that our company has failed to provide the products as seen in the pictures and the features of the product. We are always particular about the deliver the products and the quality of the product which is our motivation in our business. You have misrepresent the whole facts and stated that we negligent to provide our service which was not true. Your expectation may fail about our service and misrepresent our service. However we are very sorry that the product was not in good condition but the problem is minor which can be fixed properly. As per the agreement, the customer never gives back the product after the delivery of that good. Our company has take decisions to negotiate the price of the product and we will give the 20% cash back of the price because after we investigate about the disputes that it can be fixed and you can use the product again. We are very sorry for the inconvenience cost. Please co-operate with us. We will provide you our best service. Please reply us through an email and sent us the bank details. Thank You Y employee Date: 00.00.00 Place: XYZ As per the Contractual Remedies Act 1979, the sec- 5 of this act defines the remedies for the misrepresentation for breaches the contract and the other sections from 6 to 10 of this act provide the remedies. 2. Discussion of the remedies As per the above fact, the misrepresentation always shows in the business that the seller may state false statement about the quality and quantity of the products and the buyer faces the damages for the misrepresentation by the seller. As per the Contractual Remedies Act 1979, the sec- 5 of this act defines the remedies for the misrepresentation for breaches the contract and the other sections from 6 to 10 of this act provide the remedies. The damage of the misrepresentation always identified in the sec- 6 of the Contractual Remedies Act 1979 where the party can claim the remedies for the damages. Whereas, incase if the party who face the damage for the misrepresentation by the aggrieved party if they failed to get back the remedies a per the sec- 5 of the Contractual Remedies Act 1979 and the court not give the relief for granting the remedies as per sec- 9 then that party can recover the damages as per sec- 10 of Contractual Remedies Act 1979 which sated the facts of recovery of damages for the misrepresentation by the aggrieved party. However, if the court gives the order to pay any sum should be paid by the aggrieved party to the innocent party who has the damage as per the section 9(2) for the damage[9]. Undue Influence An ILAC approach to this problem should be used. This is a short essay. (200 words maximum) Issue As per the case study, the issue is whether Aldo can use his money in a business and that business will be profitable for him or not. Law As per the contract act the undue influence sated the fact where a person involves himself with the performance where he takes the advantages of the position of power on behalf of another persons place. In the famous case of Hogan vs. Commercial Factors (2006) CA where the actual undue influences have applied. Application As per the case study, Aldo already works under a business for last 7years and when the business owner found that he need some capitals for the business and Aldo have the capital he want that he will invent his capital for the business purposes and he will get the benefits from the business. As per the facts of undue influence, the contract can be made between the two parties of confidence and trust where the manifestly unfair bargain always comes as the result. The relation can be made between the owner of the business who is the trustee and Aldo who is beneficiary in the contract. As both of them works from the last 7 years they already made their relation as per trust[10]. Therefore it can be stated that Aldo has little knowledge about the business and if the business owner uses this capital for the lack of the capital amount in his own persona reason therefore if the business owner cheats with him then he will loss his capital money that only left for him. Conclusion According to the case study, Aldo can invest his capital in the business but he must form a proper agreement with the owner where the terms and condition must include the facts of undue influence which must protect him. REMEDIES Remedies Type of Breach Explain Law refer section and define Fact example Actual Actual breach of contract is a part of breach of contract when one party breaches the terms of the contract and not able to satisfy the parties to perform as per the contract. An actual breach occurs when one person refuses to fulfil his or her side of the bargain on the due date or performs incomplete as per the contract. Sometimes, on the due date of performance parties fail to perform their obligations. In such cases, the other party is discharged from the performance of his obligations and can hold the guilty party liable for the breach of contract. X agreed to sell his shop to Y on 21st June. But on 21st June X refused to sell the shop to Y. On Xs refusal to sell the shop, there occurred a breach of the contract. And Y can hold X liable for the breach of contract. But sometimes the party, who has failed to perform the contract on due date, subsequently expresses his willingness to perform the same. In such cases, whether he can perform the contract or not will depend upon the fact whether or not the time was the essence of the contract Anticipatory Anticipatory breach occurs when one party announces, in advance of the due date for performance, that he intends not to fulfil his side of the bargain as per the contract. It occurs when prior to the due date of performance, the promisor absolutely refuses or disables himself from the performance of his obligations. In other words, it is a declaration by one party of his intention not to perform his obligations under the contract. Thus, the anticipatory breach is the premature destruction of the contract which is the repudiation of the contract before due date of performance. The party may treat the contract as discharged and bring an immediate action for damages and treat the contract as operative and wait till the time of performance arrives. X contracted to supply to Y 500 pieces of wine bottle on 5th December 2005. But before the due date of performance, X informed Y that he is not going to supply the wine bottle at all. On Xs refusal to supply the goods, the anticipatory breach of the contract occurs. And Y put an end to the contract. Anticipatory breach is stated. Repudiation Repudiation will be established if the conduct of Party A, whether verbal or otherwise, conveyed to Party B demonstrates Party As inability to perform the contract, or an intention not to perform its obligations. The repudiation depends on the objective acts of the parties where if the Party A was such as to convey to a reasonable person in the position of Party B, repudiation of the contract as a whole, or of a fundamental obligation under it. Repudiation may occur at any time between formation of the contract and completion. A clear inability or unwillingness to perform a fundamental obligation at a stipulated essential time by Party A is an anticipatory breach, entitling Party B to terminate the contract. It should be noted that the repudiation itself does not bring the contract to an end; the innocent party must accept the repudiation and terminate the contract in order to trigger a right to damages. Choose ONE Remoteness - test explained and applied Quantum estimate explain how you decided on this amount Remoteness When any damage or loss occurs in the breach of contract the party who suffered the damages must prove the facts where the damages have occur. The damage can be fixed when the remoteness of damage can be demonstrated. In the famous case of Hadley v Baxendale1 it was found that the party who suffered the loss is not too remote. Here, the party need to prove or establish foreseeable o the damages. The damages can be occur due to the breach the contract and loss should be referred as a direct loss and indirect loss under some special circumstances. The court has declared that the when a party breach the contract, the innocent party can claim the damages where the liable of losses has reasonably foreseeable which is the direct loss. Here, the indirect loss only applicable is according to the demonstration of those losses by the innocent party. The remoteness of damage test only applicable where the direct and indirect losses has been approved. The consequential loss or damage is the alternative terminology to the indirect loss. In Hadley v Baxendale1 case was a example where the remoteness test has been applied. Choose ONE Fact example of when cancellation would apply. Give legal reason including section Explain law for cancellation Fact example When any contract is breached and the party who is the sufferer has financial loss, he r she is entitled to compensation. That person has right to end the contract and the contract allow the cancellation which has several significance to breach the contract. Restraint of Trade Insert your clause here: Factors Explain the application of the factor in your clause. The restraint of trade is defining the clauses where the employees have the allowance to confidential or commercially sensitive business information to start a new business. It prohibits the period after the employee ends their employment Interpretation and common clauses In New Zealand, the Employment Contracts Act 1991 guides employment agreements[11]. It represents the contents of the contracts regarding the employment. The purpose of this Act is to maintain a flexible working environment with multi skilling task and enhance the utility regarding to the performance pay. The Act was enacted in the year 1991. It based on the amicable relationship between employer and employee. There is a provision regarding the negotiation process between the employer and employee and a provision regarding the impact of this Act on the economic structure has been discussed. An interpretation regarding the Act has shown some effects, such as it is an unknown fact that what would happened to the industrial system in the absence of the Act, almost every employment-based factors has a common economic outcomes and it is difficult to identify the importance of these factors or any one of such factors. Essential Clause Application Your clause 1. In Attorney-General of Belize v Belize Telecom Ltd. it was observed that the Employment Contract Act has some essential terms that can be divided into two parts namely, express terms and implied terms[12]. An implied terms is divided into three parts namely terms implied by customs, terms implied by law and terms implied in fact In customary terms, it should be well established that the custom are well known to both the party and they must be certain and reasonable. The customary terms should not oppose the express terms. In Lawrence v Power, it was held that a term could be an implied one even if the parties are completely unaware of it[13]. In New Zealand, the concept of commercial law develops a recognition relating to the large part of custom. 2. The terms relating to statutes are based on some Acts that are contained within the Employment Contract Act. As per the provision of the Act, the statute-based terms are implied within some particular kinds of contract. Sale of Goods Act 1908, Marine Insurance Act 1906, and Property Law Act 2007 are some instances of Acts that consist of statutory terms[14]. In case of determining the factual terms, the Privy Council of New Zealand has categorized some criteria that are the terms should not be unfair in nature. The terms ought not to provide benefit to any one contractual party. The terms of the contract should be relevant one. In case of a business related contract, the terms should be business oriented and should have created a business efficacy. In The Power Co, Ltd v, Gore District Council it was held that the terms of an employment contract should be obvious. The factual terms should be expressed clearly. A. Optional Clauses Application Your clause with reason 1. Rights of the employees In the employment contract, the employees and employers are enjoying reciprocal duties with each other. The Employment Contract Act was enacted in New Zealand with a view to establish a fair working environment in every job-based sector. It is the duty of the employers and employees to act in good faith[15]. An employee has accrued certain rights from either the employment agreement or employment Act[16]. These rights are known as the minimum rights of the employee. Every employee is deserved an employment agreement that need to be signed by both the employer and employee. Those employees who have attained the age of sixteen years are eligible to get minimum remuneration rate for the adult. There should be a ten minutes gap after every 4 hours working period. If the working terms exceed 4 hours, there should be an unpaid meal break for 30 minutes. The employees have a right to get daily wages even on the public holidays. In New Zealand, every employee is enjoying a legal right relati ng to his or her employment. 2. Responsibility of the employers it is the duty of every employer to pay the employees as per the employment agreement. The remuneration should be as per the law[17]. It is one of the responsibilities of the employer to provide every employee four weeks annual holidays in a year. The terms of sick leave that are to be provided to the employees should be at least five days in a year. It is the duty of the employer to act in good faith with the employees and provide them work places that are safe in nature. Employer should not deduct money from the wages unlawfully. It is the duty of every employer to see that the employees should not face any type of harassment during the working hour or in any work place[18]. Harassment resists the free communication within the job sphere. Moreover, the harassment is considered as illegal by the law of New Zealand. B. Minimum Rights explained How this affects your business - Choose THREE to comment on C. Employers responsibilities explained How this affects your business - Choose THREE to comment on Reference Arbel, Yonathan A. "Contract Remedies in Action: Specific Performance." (2015). Astrauskaite, Milda, et al. "Workplace harassment: Deterring role of transformational leadership and core job characteristics."Scandinavian Journal of Management31.1 (2015): 121-135. Barker, David. Law made simple. Routledge, 2014. Barnett, Randy E., and Nathan B. Oman. Contracts: Cases and doctrine. Wolters Kluwer Law Business, 2016. Cardoso, Henriquec Lopes, et al. "ANTE: A Framework Integrating Negotiation, Norms and Trust." 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"A Personal Perspective on Legislation: Northern Milk Revisited-Soured or Still Fresh."Victoria U. Wellington L. Rev.47 (2016): 699. [1] 9)Szczerbowski, Jakub J. "Formation of Contract." European Perspectives on the Common European Sales Law. Springer International Publishing, 2015. 37-44. [2] Murty, K. S. N. "Some Problems in Formation of Contract." (2015). 10)Murty, K. S. N. "Some Problems in Formation of Contract." (2015).[3] [4] Wang, Faye Fangfei. Law of electronic commercial transactions: Contemporary issues in the EU, US and China. Routledge, 2014. [5] Wang, Faye Fangfei. Law of electronic commercial transactions: Contemporary issues in the EU, US and China. Routledge, 2014 [6] Haff, Maurice W., et al. "Method, apparatus and system for regulating electronic mail." U.S. Patent No. 9,626,655. 18 Apr. 2017. [7] Wang, Faye Fangfei. Law of electronic commercial transactions: Contemporary issues in the EU, US and China. Routledge, 2014. [8] Mendelson, Danuta, and Ian Heywood. "Minors decision-making capacity to refuse life-saving and life-sustaining treatment: legal and psychiatric perspectives." (2014). [9] Townley, Anthony, and Mehdi Riazi. "Analysis of authentic legal negotiation: Implications for teaching contract negotiation to undergraduate law students." International Journal of Language Studies 8.4 (2014). [10]Turner, Chris. Unlocking contract law. Routledge, 2013. [11] Freedland, Mark, et al., eds.The contract of employment. Oxford University Press, 2016. [12] Robertson, Andrew. "The limits of interpretation in the law of contract."Victoria U. Wellington L. Rev.47 (2016): 191. [13] Toussaint, Nigel D., et al. "Implementation of renal key performance indicators: promoting improved clinical practice."Nephrology20.3 (2015): 184-193. [14] White, Douglas. "A Personal Perspective on Legislation: Northern Milk Revisited-Soured or Still Fresh."Victoria U. Wellington L. Rev.47 (2016): 699. [15] Dawkins, Cedric E. "The principle of good faith: Toward substantive stakeholder engagement."Journal of Business Ethics121.2 (2014): 283-295. [16] Cooper, Rae, and Marian Baird. "Bringing the right to request flexible working arrangements to life: from policies to practices."Employee Relations37.5 (2015): 568-581. [17] Humpage, Louise. "A Common Sense of the Times? Neo?liberalism and Changing Public Opinion in New Zealand and the UK."Social Policy Administration50.1 (2016): 79-98. [18] Astrauskaite, Milda, et al. "Workplace harassment: Deterring role of transformational leadership and core job characteristics."Scandinavian Journal of Management31.1 (2015): 121-135.