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Assignment on Australian Commercial Law pdf

   

Added on  2021-06-15

14 Pages3481 Words42 Views
Running head: AUSTRALIAN COMMERCIAL LAWAUSTRALIAN COMMERCIAL LAWName of the StudentName of the UniversitiesAuthor Note

1AUSTRALIAN COMMERCIAL LAWAnswer 1 (a)In relation to the problems identified with respect to the process of resolving dispute between theTribe members a new constitution for the Tribe has been proposed. The primary rule which thenew constitution brings into the tribe is to ensure that the process of legal decision making isenhanced. It was identified in the scenario that a decision which was made by the elders wasinconsistent in relation to the previous decisions. The new constitution proposes that all decisionshave to be consistent to the extent that the facts of the cases are similar to each other. It wasidentified that the elders were being biased towards their own family members. The newconstitution introduces rules that everyone should be treated equally without any form ofdiscrimination and biasness. Secondary rules which are going to address the primary rules havebeen provided through the new constitution. There have been provisions for an executive bodywhich would enforce the rules made by the elders so that the tribe members are not able to ignorethe rules. The constitution has provisions for changing the rules from time to time based on theneeds of the society. The new Constitution provides for a set of judges who would decide thatwhether a tribe member is telling the truth based on evidence. The new constitution or proposal which has been made in relation to the tribe members is verymuch in compliance to the 3 part legal system which has been proposed by professor Hart1. Thisis because the proposal has provisions in relation to the rule of recognition. The proposalprovides that where there is any defect in the primary rules they can be remedied by secondaryrules in place. The proposal also has provisions for the rules of change as it provides that theproposal can be amended from time to time by taking into consideration the needs of the societyand such amendments should be in compliance with the constitution2. The rules of change1Coyle, Sean.From positivism to idealism: a study of the moral dimensions of legality. Routledge, 2017.2Mar, MaksymilianDel.Legal Theory and the Legal Academy. Vol. 3. Routledge, 2017.

2AUSTRALIAN COMMERCIAL LAWprovisions has been incorporated in the constitution as it provides administrative powers to theexecutive who would enforce the decision of the decision makers in the society and also maketheir own decisions required at the time of exercising their powers. In the same way as pointedout by Hart there is a close connection between the rules of change and the rules of recognitionin the constitution. The provision in relation to the rules of adjudication is also incorporated in the constitutionwhich has been proposed to the Tribe members. This is because the judges who would make thedecision have been provided with the powers to ensure that no one takes rules in their own handsand also base their decisions on evidence and proof. The Australian legal system also in the sameway as discussed in the proposed constitution for the tribes incorporates within itself the threepart legal system proposed by Hart3. The provision of consistent decision making is present inAustralia through the doctrine of precedent. Common law is present in order to rectify anydefects which are identified in relation to statutory laws. The laws have to be made incompliance with section 51 of the Constitution or else they would be declared as invalid.Everyone in Australia is considered equal before the law.Answer 2 Legal issueWhat are the rights of Barry in relation to the discussion between him and Angelo before gettinginto the contract. Rule3Tonry, Michael. "Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence ofJust Punishment." (2017).

3AUSTRALIAN COMMERCIAL LAWThe primary discussion which needs to be conducted in order to resolve the issue identifiedabove is that of free consent required to formal contract and specifically of misrepresentation. Inthe case of Smith v Land & House Property Corp. (1884) 28 Ch D 74 it had been ruled by thecourt that misrepresentation is a form of a false statement which one party makes to anotherparty which are not the part of contractual terms and induces the other party to form a contract. In addition the Court ruled in the case of Bisset v Wilkinson [1927] AC 1775 that for the purposeof taking action against the misrepresentation the statement must be false in relation to the factsand not be a mere opinion, law or future intention.When a person is making a false statement which is in relation to a future happening it wouldgenerally not be considered as a misrepresentation and will not be a cause of action formisrepresentation unless such terms forms a part of the contract as ruled by the court in the caseof Esso Petroleum v Mardon [1976] QB 8016.Further it had been stated by the court in Solle v Butcher [1950] 1 KB 6717 that and actioncannot be taken against the statement which has been made in relation to the existence of a law.It has also been stated by the court in the case of With v O'Flanagan [1936] Ch 5758 that where astatement which was actually true when it had been made and due to change in situation havebecome false it is the duty of the person to disclose the truth or else it would be considered as amisrepresentation. 4 Smith v Land & House Property Corp. (1884) 28 Ch D 75 Bisset v Wilkinson [1927] AC 1776Esso Petroleum v Mardon [1976] QB 801.7 Solle v Butcher [1950] 1 KB 6718 With v O'Flanagan [1936] Ch 575

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