Australian Commercial Law: Legal Framework, Contracts and Tribal Law

This assignment solution delves into various aspects of Australian commercial law. Part A examines the application of legal theories within tribal communities, contrasting them with civilized societies and exploring the significance of primary and secondary laws. Part B analyzes the Australian legal system, highlighting its common law origins, the division of powers, and the influence of Professor Hart's legal principles. Part C focuses on contract law, specifically the consent theory, and the implications of transferring rights without consent, referencing relevant cases like Electricity Generation Corporation and Barton v Armstrong. Finally, Part D addresses the 'Act of God' principle in contract law, advising on the rescission of a contract based on this exception, and referencing cases like Domtar Inc. v. Univar Canada Ltd. and Taylor v Caldwell. The assignment provides a comprehensive overview of legal frameworks, contractual agreements, and relevant case law within the Australian commercial context.

Running head: AUSTRALIAN COMMERCIAL LAW
Australian commercial law
Name of the student:
Name of the university:
Author note

1AUSTRALIAN COMMERCIAL LAW
Answer to part A
In case of a tribe the theories regarding the real system is quite different from the
civilized society. Theories or rules are common in every legal system1. In general, it can be
said that the rules or norms are encrypted under certain guidebook. That guidebook can be
termed as the constitution. In every country of this globe, there are certain norms regulated by
the constitution to return the flexibility amongst citizen2. However, in this present case it has
been observed that the subject matter is evolved with a tribal community and under the tribal
community, the primitive system is applicable. The most common feature of tribal societies
that there is a General law present and each member of the society or The Tribe has to follow
the rule. There is no scope for the state government under the tribal law3.
There are 2 classes of legal system present under the English law. They are primary
law and secondary law respectively. In case of the tribes, the rules regarding the primary law
applicable. It is a shape that under primary law, there are certain loopholes cropped up. It is it
common troubleshoots regarding the primary law that they are uncertain in nature4.
The main importance of law is that it helps to maintain the proper discipline among
the community. As in a tribal society there is no existence of state government therefore it is
required to maintain discipline in order to leave with the guidance of natural law. Therefore,
1 Baudrillard, J. (2016). The consumer society: Myths and structures. Sage.
2 Glenn, H. P. (2014). Legal traditions of the world: sustainable diversity in law. Oxford University Press (UK).
3 Gordon, B. (2014). Acceptance by conduct in ecommerce transactions in Australia. Commercial Law
Quarterly: The Journal of the Commercial Law Association of Australia, 28(2), 3.
4 Jones, R. K., Frohwirth, L. F., & Blades, N. M. (2016). “If I know I am on the pill and I get pregnant, it's an
act of God”: women's views on fatalism, agency and pregnancy. Contraception, 93(6), 551-555.

2AUSTRALIAN COMMERCIAL LAW
in the tribal community every member should follow the rules applicable for them as stated
under any constitution of The Tribe5.
Certain principles of legal system by professor Hart are applicable here. According to
professor Hart, it is important to maintain the systematic formula in any society6. If there is
any ambiguity present in a legal system it is difficult to follow up the proper education of the
legal system by the common people or the member of the society.
In the present case, it has been observed that some new members of The Tribe come
to join and were unknown about the legal system of The Tribe. This is a rule under the tribal
society that every member should abide by the rules and regulation and therefore it is the duty
of the existing number of the child to let them know about the rules and provisions of the
legal system by verbally7.
Answer to part B
In every country, there is a legal system that guide the process of applicability. By the
legal system of a country, the ideology regarding the lawmaker can be understood8. Common
law system is observed in the provinces of Australia. In Australia the doctrine of common
law system has been originated from the British Colony. You are so it can be said that the
rules of law under the Australian legal system not similar to the rules of the English law. A
5 Kumar, R., Singh, B., Shahani, D. T., Chandra, A., & Al-Haddad, K. (2015). Recognition of power-quality
disturbances using S-transform-based ANN classifier and rule-based decision tree. IEEE Transactions on
Industry Applications, 51(2), 1249-1258.
6 Lamond, G. (2014). Legal Sources, the Rule of Recognition, and Customary Law. The American Journal of
Jurisprudence, 59(1), 25-48.
7 McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press (UK).
8 Painter, R., & Holmes, A. (2015). Cases and materials on Employment Law. Oxford University Press, USA.

3AUSTRALIAN COMMERCIAL LAW
decision regarding the power is noticed under the Australian legal system and 6 states of
Australia are empowered with their own legal rights constitution and laws9.
In general, Australia follows the secondary rules of law and therefore certain
similarities are observed with the legal principle coined by professor Hart. Professor Hart
believe that the power should be divided to avoid the confliction between the legal systems10.
He was also of the opinion that it is important to avoid the uncertainty in the legal system by
adopting the secondary rules of law. Processor Hart has propounded the principle of 3 part
legal system . It was his opinion that in case of primary schools of law, uncertainty and static
conditions are to be raised. The only solution of the problem is to adopt the secondary rules
of law and he had generated certain rules of recognition change and adjudication. A country
can be managed systematically if there is a rapid growth him regarding the modification of
the rules. it is important to retain the efficacy in case of Resolve a dispute. He was made a try
to avoid the loopholes of the primary legal system and deliver certain scopes regarding the
existence of the Legal procedure.
He has stated that every member of the society should abide by the rules that are
common in nature and it is the duty of the officials of the administrative authorities to look
after the matter whether every member of the society are following the rules properly or not.
In the modern Australia the legal system of Hart has been followed up and their
certain examples that can be seen as a proof to the fact11. The legal system of Australia has
9 Ross, C., & White, S. (2014). Recent Judicial Consideration of Endeavours Clauses in Australia and
Singapore. Const. L. Int'l, 9, 9.
10 Schauer, F. (2015). Legal fictions revisited. In Legal fictions in theory and practice (pp. 113-129). Springer
International Publishing.
11 Stone, R., & Devenney, J. (2014). Text, cases and materials on contract law. Routledge.

4AUSTRALIAN COMMERCIAL LAW
been divided into three separate parts that are legislative executive and judiciary. The
Legislature of Australia is also divided into 6 different states, which have the self-governing
abilities12. The social structure of Australia has promised and efficient legal system and the
juridical nature of the Australia is also follows the secondary rules of law.
Answer to part C
Issue
The main issue of this case is to point out the part where it is the right of the
contractual party to deliver or transfer certain rights regarding the contractual agreement
without obtaining consent from the other party or not13. The present case is based on the
consent theory that is one of the essentials of the contract. It has been stated under the
Australian Contract Act that it contract cannot be legally buying the parties unless and until
fulfils all the criteria of the elements of contract14.
Relevant rules
It should be mentioned that the Australian legal system follows the principle of
common law. Australia was a colony of England and therefore the legal system of Australia
is maths similar to the legal system of England. It has stated under the Australian contract law
that contract is an agreement that is bind by law. A contract can be done by way of an
agreement where the parties will stated their condition and consent over the issues mentioned
in the agreement. In general there are 5 Essential elements of a contract that are offer and
12 Shams, S. R. (2016). Capacity building for sustained competitive advantage: a conceptual framework.
Marketing Intelligence & Planning, 34(5), 671-691.
13 Sheehan, D. (2017). The principles of personal property law. Bloomsbury Publishing.
14 Villa, C. J. (2017). Is The ‘Act of God’Dead?.

5AUSTRALIAN COMMERCIAL LAW
acceptance, intention of the parties, consideration, capacity and certainty15. Therefore, it is
clear from the elements that offer and acceptance is the base of every contract. In the process
of offer and acceptance, a party offers certain things, the other party accepts the same, and
intentionally they are binding themselves in a contractual relationship through an
agreement16.
The subject matter of the case is evolved with the consent theory. The term consent
means that both the parties in a contract will be agreed on a certain matter. In case of
contract, it is necessary that the parties will have the intention to bind themselves legally and
therefore, consent of the parties is necessary.
In a case regarding the Electricity Generation Corporation, 2013, it was observed by
the court that an endeavour should be obtained in the case of a sale agreement and the
validity of the sale agreement can be cancelled if the same cannot be done in proper way. In
is important to maintain the clause regarding the same to achieve the legal procedure in a
sale.
One of the requirements regarding the consent is that the party to the contract should
have to give his consent freely and under no fear or force. Force means some instrument by
which the consenting parties have to give consent under certain pressure such as coercion,
undue influence or misrepresentation. There are many cases present under the contract law
where any of the parties to the contract had to express their views in the contract forcefully.
15 Virgo, G. (2015). Principles of the Law of Restitution. Oxford University Press, USA.
16 Yeung, H., & Huang, F. (2016). Certainty Over Clemency: English Contract Law in the Face of Financial
Crisis. In The Effects of Financial Crises on the Binding Force of Contracts-Renegotiation, Rescission or
Revision (pp. 285-305). Springer International Publishing.

6AUSTRALIAN COMMERCIAL LAW
In Barton v Armstrong [1976], it was held by the NSW Court that if in a case, one of
the contracting parties threatened the other to obtain his consent over the same; the victim
party can have the option to make the contract voidable at per his will.
One of the important weapons in the case of forceful consent obtaining cases under
the contract law is “duress”. It has been observed by the court that in any case, either the
party face any forceful object regarding the consent; he has the right to rescind the contract
agreement based on the fact.
In Hawker Pacific Private Ltd. v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298,
the defendant had threatened the plaintiff to withhold the entire helicopter if he did not pay
him a certain amount of money. Therefore, it was held that the party to that agreement could
rescind the agreement.
Another case regarding the duress case is Byle v Byle [1990], where one of the
children had forged the signature of his father regarding a contract and threatened the father
to kill if he had denied the terms and conditions of the agreement.
Application:
From the matter of the present case, it can be observed that one contract regarding the
consultancy has been commenced in between the Australian National Bank and Idoport Pty
Ltd. After the contract had been made, the company had faced certain financial problems and
taken certain loan from one Fulham Partners LLC. The company had secured his consultancy
agreement with the bank as a guarantee for the loan without taking any consent from the
bank. Problem arises when the bank denied giving consent regarding the same. Fulham
Partners LLC had sued the bank before the competent court authority where the court
observed that the bank had done the right thing and maintained the rules regarding the
consent theory of a contract.

7AUSTRALIAN COMMERCIAL LAW
Conclusion:
Therefore, it can be said that without obtaining the consent from one party, other party
to the contract cannot assigns his rights and liabilities to the other.
Answer to part D
Issue:
The issue of the case is to advice Betty whether she can rescind the contract made
with Ram or not.
Relevant rules:
The present case is based on the term “act of God”17. The rules under the contract are
usually strict in nature as in case of contract, the interest of two or more parties are involved.
Therefore, if any of the parties have failed to perform his duty properly, he shall be held
liable for the breach of contractual term and the other party can bring case regarding the
specific performance against him. Act of God is an exception to that common rule. It is held
under the law that in case of Act of God, the responsibility regarding the breach happened by
way of certain natural disasters and any parties to the contract had no liability over the breach
of this. Therefore, both the parties can be excused under this principle.
In Domtar Inc. v. Univar Canada Ltd. (2011), it was held by the British court that if
the cost of the caustic soda has been increased by the reason of Act of God and the facts is
unavoidable in nature, no parties will be held responsible for the same.
17 Jones, R. K., Frohwirth, L. F., & Blades, N. M. (2016). “If I know I am on the pill and I get pregnant, it's an
act of God”: women's views on fatalism, agency and pregnancy. Contraception, 93(6), 551-555.

8AUSTRALIAN COMMERCIAL LAW
The same principle regarding the act of God has been observed in Taylor v Caldwell
(1863) EWHC J 1. It is a fact that the contractual obligations are important as it helps to
retain a discipline among the parties and restricts them to do anything by harming the interest
of the parties18. However, if any situation cropped up where the conditions of the contract are
not possible to maintain by way of certain disaster, the parties to the contract will be excused
and any of the party can cancel the contractual agreement. Many of the researchers that a
human being has no power to control the natural force and therefore, they should be excused
from any liabilities or their interest would be affected have observed it.
Application:
One thing revealed from the subject matter of the present case that a contract
regarding the delivery of coal had been made in between the Ram and Betty. It was being
contracted that Ram had to deliver certain amount of coal to Betty for her business purpose
and the same should be deliver within a certain period. It was continued for certain times and
after some months, heavy rainfall affected the coalmine of Ram and he realised that it will
not be possible for him to deliver the coal to Betty. He then and there informed Betty
regarding the same and expressed his view over the same. The case is an obvious example of
the act of God and therefore, Betty is under a dilemma regarding the same.
Conclusion:
Betty is advised to do certain things to tackle the present situation. Betty can
terminate the contract as the case is attracted the provision of the act of God. Both the parties
to the contract are free from the liabilities and therefore, Betty can purchase necessary coal
18 Schauer, F. (2015). Legal fictions revisited. In Legal fictions in theory and practice (pp. 113-129). Springer
International Publishing.

9AUSTRALIAN COMMERCIAL LAW
from others to manage the present situation. Betty is also advised to consider the present
condition as Ram has no option to control the situation and can give another chance to Ram
after the recovery of the coalmine.

10AUSTRALIAN COMMERCIAL LAW
Reference:
Baudrillard, J. (2016). The consumer society: Myths and structures. Sage.
Glenn, H. P. (2014). Legal traditions of the world: sustainable diversity in law. Oxford
University Press (UK).
Gordon, B. (2014). Acceptance by conduct in ecommerce transactions in Australia.
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia,
28(2), 3.
Jones, R. K., Frohwirth, L. F., & Blades, N. M. (2016). “If I know I am on the pill and I get
pregnant, it's an act of God”: women's views on fatalism, agency and pregnancy.
Contraception, 93(6), 551-555.
Kumar, R., Singh, B., Shahani, D. T., Chandra, A., & Al-Haddad, K. (2015). Recognition of
power-quality disturbances using S-transform-based ANN classifier and rule-based decision
tree. IEEE Transactions on Industry Applications, 51(2), 1249-1258.
Lamond, G. (2014). Legal Sources, the Rule of Recognition, and Customary Law. The
American Journal of Jurisprudence, 59(1), 25-48.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford University Press
(UK).
Painter, R., & Holmes, A. (2015). Cases and materials on Employment Law. Oxford
University Press, USA.
Rembar, C. (2015). The law of the land: The evolution of our legal system. Open Road
Media.

11AUSTRALIAN COMMERCIAL LAW
Ross, C., & White, S. (2014). Recent Judicial Consideration of Endeavours Clauses in
Australia and Singapore. Const. L. Int'l, 9, 9.
Schauer, F. (2015). Legal fictions revisited. In Legal fictions in theory and practice (pp. 113-
129). Springer International Publishing.
Seidman, A. (2016). State and law in the development process: problem-solving and
institutional change in the Third World. Springer.
Shams, S. R. (2016). Capacity building for sustained competitive advantage: a conceptual
framework. Marketing Intelligence & Planning, 34(5), 671-691.
Sheehan, D. (2017). The principles of personal property law. Bloomsbury Publishing.
Stone, R., & Devenney, J. (2014). Text, cases and materials on contract law. Routledge.
Stone, R., & Devenney, J. (2014). Text, cases and materials on contract law. Routledge.
Street, B. V. (2016). The savage in literature: Representations of'primitive'society in English
fiction 1858-1920. Routledge.
Villa, C. J. (2017). Is The ‘Act of God’Dead?.
Virgo, G. (2015). Principles of the Law of Restitution. Oxford University Press, USA.
Yeung, H., & Huang, F. (2016). Certainty Over Clemency: English Contract Law in the Face
of Financial Crisis. In The Effects of Financial Crises on the Binding Force of Contracts-
Renegotiation, Rescission or Revision (pp. 285-305). Springer International Publishing.

12AUSTRALIAN COMMERCIAL LAW