Business Law in Brazil and Australia

This article discusses the legislative systems, court systems, contract law, agency law, employment law, and intellectual property law in Brazil and Australia. It covers the differences and similarities between the two countries' legal systems and provides insights into the legal frameworks that govern business transactions in both countries.

Running head: BUSINESS LAW
Business law
Name: NIKHIL KUMAR DODLEY
ID: 00173065T
Scenario country: BRAZIL
Prof: BARRON
TORRENS UNIVERSITY
Word count: 1800

1
BUSINESS LAW
Law Scenario country (Brazil) Home Country (Australia)
Legislative system
Rule of Law
The law of brazil is based on
statutes and, partly and more
recently, a mechanism
called súmulas vinculantes. It
derives mainly from the civil
law system of European
countries
There are many codified
statutes in force in Brazil.
The current Federal
Constitution, created on
October 21, 1988, is the
supreme law of the country
The Constitution organizes
the country as a
Federative Republic formed
by the indissoluble union of
the states and municipalities
and of the federal district.
Under
the principles established in
the Federal Constitution,
Brazil's 26 federate
states have powers to adopt
their own Constitutions and
laws.
There is a constant progress
towards establishing uniform
laws and maintaining and
changing legislative laws.
Australian legal system
reflects a parliamentary
democratic system. Federal
system can be observed in
that country. It means the
power is divided between one
national government and six
states. The states are self-
governing states and the
judges are depending on the
precedents.
The Constitution of Australia
is the primary legal document
and it is supreme law of the
land which gives all the
powers to the legislative
documents.
Every citizen and the
government is entitled to a
uniform law and the laws are
made to make sure there is no
bias and everyone is made to
feel equal in the eyes of law
(Curtin, 2016).
Court system The court system is
multifaceted and the law
followed is mostly civil in
nature. The jurisdictions are
divided into electoral,
constitutional.
There is a hierarchy of courts
in Australia and the courts are
divided into federal and state
levels. The highest court in
Australia is High Court.
Types of courts The Supreme Federal Court,
Superior Court of Justice,
Superior Labour Court,
Magistrates’ Court, Local
Court, District and County
Court, Supreme Court,

2
BUSINESS LAW
Superior Electoral Court Federal Courts, High Court.
Diagram of courts The Supreme Federal Court-
Superior Court of Justice-
Superior Labour Court-
Superior Electoral Court
( picture 1 in appendices)*
Magistrates’ Court-Local
Court- District and County
Court-Supreme Court-Federal
Courts- High Court.
( picture 2 in appendices)*
2. Contract Law
Elements of contract law
The contract law in Brazil is
influenced by the Brazilian
Civil Code and it also takes
into consideration
Consumer’s Code. The
contract should be legal and
moral.
The contract law has to be
valid only if there is an
agreement, offer and
acceptance and a lawful
consideration. Australian Law
is influenced by common law
and it ensures the relationship
between the two parties who
are willing to enter into a
party. Contract law is formed
by the legally enforceable
agreements which are valid in
the eye of law. In cases of
any breach, the parties can
claim damages (Mason,
2016).
How are contract laws made The agreement has to be legal
and moral and the agreement
should deal with possible
standards which can be met
by both the parties (Smits,
2017).
The parties have to make a
free bargain and they need to
enter into a legally binding
agreement.
Frustration of Law A contract is said to be
frustrated when it cannot be
legally enforceable. (Klee,
2018)
When the contract cannot be
enforced because of
unenforceable conditions and
the parties cannot enforce the
contract. None of the parties
are at fault in cases of
frustration of contract. The
functions of the contract is to
meet the goals and objectives
of the contract and in cases of
frustration, the contract
becomes terminated
automatically and thereafter
the parties are not obligated
to honour the ends of the
contract. In cases of frustrated

3
BUSINESS LAW
contracts, it becomes void ab
initio, that is, void since the
inception. Delay is one of the
reasons when a contract
becomes frustrated. One of
the problems of claiming
frustration is the difficulty in
establishing it and therefore it
increases the chances of
claiming damages.
Remedies of contract law Punitive damages mean they
can punish the offending
parties.
Damages can be either
liquidated or unliquidated
where the sum is either
decided or left for court to be
decided. Liquidated damages
are calculated on a weekly
basis whereas unliquidated
damages can be claimed in
cases of breach (Hoeppner,
Freud & Depoorter, 2017).
Unliquidated damages can be
claimed when the breach
could not have been
anticipated (Eldridge, 2016).
3. Agency Law
Duties of agent
The agent has to promote the
business of principal.
Brazilian Civil Code of 2002
manages the law of agency in
Brazil. It is a contract entered
into between the agent and
the principal and the rules of
federal apply.
The agent is duty bound to
work for the profit of the
principal. He has to act as the
intermediary promoting the
business of the principal
(Piva & Sasanelli, 2017)
Rights of agent In Brazil, the agent has rights
to be compensated for the
loss that is suffered in the
transaction. The Brazilian
Civil Code, 2002 talks about
the rights and duties of the
agent. The agent has the right
to be indemnified in cases of
loss.
The agent is compensated by
the principal for working
under him. The agent has the
right to be reimbursed by the
principal for all the expenses
that he bears on behalf of the
principal. The agent shall also
be indemnified against
unlawful acts and the agent
shall not be held liable for the
acts of the principal. The
agent shall only be treated as
the representative of the
principal.

4
BUSINESS LAW
Principles of agent The agent has to disclose all
the information truthfully and
act in the best interest of the
principal (Lowenstein, 2017).
The agent cannot defraud the
principal. The agent has to
remain truthful to the
principal.
The agent has to keep his
interest ahead of the
principal. The agent has to be
careful and diligent in dealing
with the terms of the
agreement (DeMott, 2015).
The agent has to avoid
conflict of every nature and
also has to keep the interest
of the principal.
Obligations of an agent The agents are obligated to
maintain a fiduciary
relationship and they are
based on trust. The principal
is obligated to work as the
facilitator and promoter of
business transactions that
takes place between the
principal and the third party
(Lipsky et al., 2018).
Agents are bound by a code
of conduct that mandates that
the agents keep the interests
of the principal and the
agreement ahead of the
interests that might accrue out
of the transaction. The duties
of the agent entail that he
shall act on behalf of the
principal and also represent
him. The principal shall
delegate powers to the agent
and he shall have to act in
regard to those. The principal
has a natural power of
authority over the agent and
the agent is duty bound to act
in good faith. The agent has
to avoid conflict and act in
the best interest of the
principal.
4. Employment Law
Statutes
Civil law countries lay
emphasis on the rights and
duties of the employees and
there are specific agreements
dealing with the rights of the
people who are working in a
corporate environment (Rice,
2017). The civil codes of
employment are not binding
and the employment act is
important for giving a status
of employment to the parties.
The Australian Employment
Act is dependent on the
statutes that clearly give the
status and position of an
employer (Dau-schmidt,
2016). The Fair Work Act,
2009 talks about the
relationship between
employer and employee and
it is the law governing their
rights under the Australian
law. It talks about the
entitlements and the working
hours that the employee has
to be subject to. The statutes

5
BUSINESS LAW
clearly talk about the wages
and remuneration and how
the laws are implemented in
terms of the employment
schemes. Employment has to
be understood as a method of
finding the right position, the
employment skills and then
dealing with the restrictions
that apply on the employers
and employees. The National
Employee standards ensure
the minimum entitlements
that are owed to an employee
and the employer is duty
bound to take care of the
requirements of the
employee. This Act provides
for a framework that
discusses the rights and
requirements of the
employees.
5. Intellectual Property
How will develop
Intellectual Property is the
newest kind of law that needs
protection and recognition
from the government
(Dutfield, 2017). The
intellectual property has
different branches that deal
with trademark, copyright,
patent and geographical
indication. Intellectual
Property has developed with
the help of recognition and
protection of the rights that
are the outcome of creativity
and use of inventions.
Intellectual property rights
are related to intangible assets
which include in their ambit
trademark, designs, patents.
The entire purpose of
intellectual property is to
develop international
agreements between the
parties that are essential for
the prevention of
infringement (Janis et al,
2016). The Intellectual
Property Laws in Australia
are for the purpose of
administering laws that help
in the regulation of
intellectual trade.
How will protect The intellectual property laws
in Brazil are meant for the
protection of intellectual
property rights that do not
promote any infringement.
The entire purpose of
protection of intellectual
The laws in Australia for the
protection of intellectual
property is essential as it
protects the rights of the
holders of intellectual
property. In cases when there
is no right over the property,

6
BUSINESS LAW
property rights is to ensure
that there is no third party
interference and that there is
no infringement by any third
party without proper
permissions.
the laws makes it mandatory
that the holder of the property
gets the registration so as to
prevent infringement and
interference by third party.
The Trade mark Act, Design
Act, Plant Breeder’s Rights
Act and Regulations,
Copyright Act and Patent
Acts are the primary laws that
deal with intellectual property
rights in Australia.
Remedies in case of
intellectual property
Under the Brazilian law, It is
essential that the trademark
be protected. In cases when
there is a breach of trademark
protection, it becomes
important to ensure that the
right holder whose rights
have been infringed finds
ways to be compensated
(Bentyl & Sherman, 2014). It
is the duty of the legislature
to ensure that the rights of the
holder are protected. Both
monetary and non-monetary
methods of compensation are
applied to ensure that the
rights of the holder are
preserved. Both civil and
criminal damages can be
claimed and in such cases, the
compensation becomes
necessary.
Under Australian law, the
owner of the intellectual
property shall have their
rights protected and there are
many remedies available to
an owner in case there is an
infringement of the
rights(Drahos, 2016). The
damages are devised by the
government to ensure that
there are legal remedies that
help in the protection of the
legal rights of the holder. The
damages are in the position to
compensate the losses that
have been suffered by the
holder. The nature of the
damages are monetary and
they are also civil in nature.
The intellectual property
rights grants negative rights
and therefore it ensures that
there is no infringement of
those rights by third parties.
There shall be no unlawful
use of the protected marks
and no one should gain unfair
advantage of those marks.
Intellectual property rights
protect the artistic and literary
works of an author and
promotes innovation.
7. Law of torts The concept of tort law in
Brazil is very highly
The tort law in Australia is a
mix of common law and

7
BUSINESS LAW
developed that talks about the
liabilities that are imposed on
the defaulting party. Torts
and economics are very
thoroughly discussed under
Brazilian law and tort has
always had a very strong
impact on the economics of
Brazil. In Brazil, there is a
dualistic system of liability
which is very strong in
understanding the crime and
does not go slow in
addressing the needs of the
people whose rights have
been infringed. Tort law in
Brazil started with the help of
the statutes that claimed that
clear cut tests be applied to
understand liability and
punish the defaulting party
(Kraakman & Hansmann,
2017). The Brazilian system
has focused more on the
hybrid conditions of the UK
law and the German law
which tries to harmonize any
conflict that arises between
the judiciary and the world
that follows the concept of
tort law (Dyson, 2017).
Negligence and compensation
are always going hand in and
therefore it is essential to link
liability and causation. The
theory of tort arises from the
concept of damages and it is
important to assign fairness
and equity in any legislation.
Brazilian tort law protects the
victims and penalizes the
wrongdoers.
legislation and tort law
applies in cases where there is
a civil wrong. Tort is a
private wrong that is done on
a private person with the help
of the wrongdoings of
another wrong person. Tort
helps in the correction of
wrongs and they derive their
inception of the legislation
that believes in the correction
of human conduct. The tort
law in Australia is very strong
and the limits of tort law
cannot be defined with the
help of the statutes. Under
Australian law there are no
specific laws and the tort laws
have evolved through
common law statutes
(Stickley. 2016). The colonial
heritage of Australia owes its
recognition to tort law and
United Kingdom has played a
strong role in understanding
and comprehending the rights
of the victims. The tort law in
Australia has been a success
and it is a strong case of the
wrongdoers getting penalized
by the law by inflicting harm
on another private person.

8
BUSINESS LAW
References
Bently, L., & Sherman, B. (2014). Intellectual property law. Oxford University Press, USA.
Curtin, J. (2016). Australia. European Journal of Political Research Political Data
Yearbook, 55(1), 14-21.
Dau-Schmidt, K. G., Finkin, M., & Covington, R. (2016). Legal protection for the individual
employee. West Academic.
DeMott, D. A. (2015). Agency in the Alternatives: Common-Law Perspectives on Binding the
Firm. Research Handbook on Partnerships, LLCs and Alternative Forms of Business
Organizations, 81.
Drahos, P. (2016). A philosophy of intellectual property. Routledge.
Dutfield, G. (2017). Intellectual property rights and the life science industries: a twentieth
century history. Routledge.
Dyson, M. (2017). What Does Risk-Reasoning Do in Tort Law?.
Eldridge, J. (2016). The law relating to penalties.
Hoeppner, S., Freund, L., & Depoorter, B. (2017). The Moral-Hazard Effect of Liquidated
Damages: An Experiment on Contract Remedies. Journal of Institutional and
Theoretical Economics JITE, 173(1), 84-105.
Janis, M. D., Hovenkamp, H., Lemley, M. A., Leslie, C., & Carrier, M. A. (2016). IP and
antitrust: an analysis of antitrust principles applied to intellectual property law. Wolters
Kluwer Law & Business.
Klee, L., 2018. International construction contract law. John Wiley & Sons.
Kraakman, R., & Hansmann, H. (2017). The end of history for corporate law. In Corporate
Governance (pp. 49-78). Gower.
Lipsky, T., Wright, J. D., Ginsburg, D. H., & Yun, J. M. (2018). Federative Republic of Brazil,
Before the Administrative Council for Economic Defense (“CADE”), Draft Guidelines
Concerning Antitrust Remedies, Comment of the Global Antitrust Institute, Antonin
Scalia Law School, George Mason University.
Loewenstein, M. (2017). Agency Law and the New Economy.
Mason, K. (2016). Mason and Carter's restitution law in Australia. LexisNexis Butterworths.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).
Piva, A., & Sasanelli, N. (2017). Societal and Economic Benefits of a Dedicated National Space
Agency for Australia. Defense SA.

9
BUSINESS LAW
Rice, L. J. (2017). Employment Law Pitfalls for Solo and Small Firm Practitioners. Md. BJ, 50,
18.
Smits, J. M. (Ed.). (2017). Contract law: a comparative introduction. Edward Elgar Publishing.
Stickley, A. P. (2016). Australian torts law. LexisNexis Butterworths.

10
BUSINESS LAW
Appendices :
Picture 1 (Brazil court system)

11
BUSINESS LAW
Picture 2 (Australia court system)