Assignment: Australian Commercial Law
13 Pages3317 Words43 Views
Added on 2021-06-17
Assignment: Australian Commercial Law
Added on 2021-06-17
ShareRelated Documents
Running head: AUSTRALIAN COMMERCIAL LAWAUSTRALIAN COMMERCIAL LAWName of the StudentName of the UniversitiesAuthor Note
1AUSTRALIAN COMMERCIAL LAWPart A1 (b)There have been several theories and provisions which have been provided in relation to thefunctioning of the legal systems. One of such rules is known as the rule of recognition and hasbeen provided through Hart1. There are primarily three requirements which if present in a ruleprovides them the eligibility to become the law. Firstly the rule has to impose validity in relationto all things which are present with respect to the legal system, the rule consists of the testthrough which valid legal results can be obtained and the rule unifies all provisions present andapplied within a particular legal system. Through such requirements, Hart signifies that a three-tier system identified above has to be used in legal systems2. The system generally moves frombottom to the top where the flow is to judicial precedents from states and to customs fromjudicial systems. The primary rules are rules which if breached may lead to legal punishmentsuch as punishment for committing theft on the other had secondary rules are rules which are inplace to address the problems of the primary rules such as the rules of interpretation. The hartlegal system is based on three secondary rules which are rules of change, the rule of recognitionand rule of adjudication.The Australian legal system has a similar approach as compared to the approach taken in the UKlegal system. The legal system of UK uses a three-tier system. This signifies that the rule ofrecognition is to a large extent applicable in the legal system of UK. In Australia, on the otherhand, a two-tier system is used as it has a federal system of governance3. These tiers are divided1Bix, Brian. "On the dividing line between natural law theory and legal positivism." Law and Morality. Routledge,2017. 49-60.2Green, Michael S. "A Puzzle About Hart’s Theory of Internal Legal Statements." Pragmatics and Law. Springer,Cham, 2017. 195-221.3Schauer, Frederick. "The Path-Dependence of Legal Positivism." Virginia Law Review (2015): 957-976.
2AUSTRALIAN COMMERCIAL LAWinto the system of the Commonwealth government and the state legal system. Unlike that of UK,the constitution of Australia is codified and is known as Commonwealth of AustraliaConstitution Act. The constitution provided guidelines in form of legal principles which get outthe way in which the relationship between the state and the federal government is managed. Inaddition to statutory provisions, the Australian legal system is also based on the principles ofcommon law which is to be taken into consideration for the purpose addressing legal issue.However, Australia follows a policy that where a contradiction between statues and the commonlaw takes place common law will be superseded by statute law. Thus it can be thereforeevidently stated that in Australia also the rule of recognition as laid down by Hart is followed.The position is further provided support through the fact that the country has a constitutionthrough which it is specifically set out that what is to be considered as law in the country andwhat is not to be a part of the law. The constitution also defines provisions which set out rulesand regulations in relation to the relationship between state and federal government and definedlegislative powers which develop statutory laws. Thus it imposes validity in relation to all thingswhich are present with respect to the legal system, the rule consists of the test through whichvalid legal results can be obtained and the rule unifies all provisions present and applied within aparticular legal system. Therefore it can be evidently stated that the three-tier legal system whichhas been provided by Hart is incorporated into the Australian legal system as it recognizes lawsvia the constitution, incorporates principles of common law via incorporating customary law andjudicial decisions. Hence, the Australian legal system can be compared to the UK legal systemwhich has Hart's three-tier legal system as its basis. The mere difference which the legal systemshave is that Australian legal system is codified and on the other hand UK's legal system isunwritten4. The system followed in the UK provided additional scope in relation to common law4McKendrick, Ewan. Contract law: text, cases, and materials. Oxford University Press (UK), 2014.
3AUSTRALIAN COMMERCIAL LAWinterpretation while defining and regulating constitutional provisions. The use of common law inAustralia is thus less as compared to that in the UK.Part BQuestion 2IssueThe issue here is that a contract was signed by Barry and Angelo to purchase a store of fruits andvegetables. There were several terms that were provided in this contract but there wasmisrepresentation of the facts that were provided in the contract.RuleThe provisions of the Sale of Goods Act 1954 deal with those transactions on which theAustralian Consumer Law 2010 is not applicable. In the given situation ACL is not applicable asthe transaction is worth more than $40000. The validity of contract can only be present only if the essentials like agreement, considerationand the aim to form binding relationships in a legal way are present. Australia includes someprinciples of common law in their system like that of United Kingdom. Here, the word agreement means the contract made between two or more parties that are boundlegally. In short, it is also known as the existence of offer and acceptance.This also states that theapproval that is acquired that is the acceptance of the offer must be theright consent. A trueconsent is obtained if these fraud, misrepresentation, coercion or undue influence are not present.
End of preview
Want to access all the pages? Upload your documents or become a member.
Related Documents
Australian commercial Law (PDF)lg...
|13
|2875
|33
Australian Commercial Law: Rule of Recognition and Remedies for Breach of Contractlg...
|15
|4012
|437
Australian Commercial Law PDFlg...
|12
|3087
|42
Australian Commercial Law : PDFlg...
|12
|2881
|35
Australian Commercial Law: Analysis of Legal Systemslg...
|8
|2387
|146
Commercial Law Legal System - Assignmentlg...
|7
|2212
|32