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Key Topics
- Requirements -
- Solution
- Question 1
- Introduction
- Legal system in USA
- Applying Australian legal system on the legal rules
- Conclusion
- Question 2 Solution
- Introduction
- Issue: Regardless of whether Sandra May can sue the retailer for break of guarantee and good faith?
- Rule:
- Application
- Conclusion and Recommendation
Requirements -
1- Write a note on Australian commercial law in approx 2000 words with references to APA.
Solution
Question 1
Introduction
Legal system can be defined as a process to interpret and enforce the provisions of the law within the state. The legal system can be elaborated as the rights and responsibilities in various ways. There are three major legal system that persist throughout the world which includes civil laws, common laws and the religious laws. The paper will study into the legal system of USA with recognized legal rules .
Legal system in USA
There is a federal system of government in United States with a written constitution. The legal system that is prevalent in the USA is a common law legal system. The Federal System of Government is at the Centre and all other fifty states has separate legal system. However, the system of USA and its states fall within the purview of traditional common law legal system. The United States Constitution has established the Federal Government and defined its powers. Though the individual states have their own constitutions, however the state governments follows the pattern of Federal Government. The structure of American government depends on separation of power and various checks and balances. The powers of the government is exercised by separate branches such as the legislature, executive and the judiciary. However, these each branch can check the powers of the other in various ways.
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Rules of recognition: The rule of recognition has been propounded by H.L.A Hart and this rule of recognition is considered to be the foundation of a legal system. The rule of recognition has been identified and accepted by both individuals and authorities to identify the rules and obligations. Rules of recognition includes the legislations and enactments, declarations and judicial precedents. The rules of recognition has been identified by the US legal system through enacting laws for the state as well as interpreting those laws for adjudicating the disputes. Judicial precedents is also prevalent in the US legal system.
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Rule of Change: The rules should be subject to change. According to H.L.A. Hart, rules of change can be described as the fundamental rules which empowers the legal system to make alteration or changes to the rules of the state. The rules in a legal system are identified by the primary rules and are altered by the secondary rules. The rules of change defines how laws should be amended or repealed. The legal system of USA has identified the rule of change through Article V of the US Constitution. By using the power to amend laws the Federal Government make amendments or repeal the legal provisions and other rules and regulation of the state .
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Rules of Adjudication: The rules of adjudication is nothing but the legal process through which remedy is provided. The individuals are empowered by the rules of adjudication to determine whether there is any violation to the primary rules of the state . The election and procedure of the judiciary is governed by the rules of adjudication. Therefore, USA too has identified the rule of adjudication by forming another branch of government called the judiciary. The judiciary has the power to interpret the laws enacted by the legislations and provide remedy to the wrongs.
Applying Australian legal system on the legal rules
Parliamentary democracy with federal system of government is prevalent in Australia. The Australian Legal system has distributed its powers within the national government and the state governments. The Constitution of Australia has define the jurisdiction of the national government and state governments and has divided the power to enact laws between both the governments. Australia was also colonized under the British and therefore, it also follows the common law system that is prevalent in the common law countries of the world. The Australian laws are enacted either by the legislature or through the precedents of the courts. The powers of the governments has also been separated similar to the USA that it has three bodies legislature, executive and judiciary and powers of all these bodies are separated from each other .
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Rules of recognition: Australian legal system has identified the rules of recognition both through the statute law as well as through the common law system. Australia is one of the common law countries in the world and therefore it follows the common law system. Australia enacts laws, rules and regulations either by the Federal Parliament, Parliament of the States of Australia which can be said to be the Statutory Legal System and the prevalence of the common law system arise through the precedents of the judges or courts in Australia.
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Rule of Change: The rule of change has been identified by Australian legal system through Chapter VIII of the Constitution of Australia. The rules of change refers to the change or alteration of laws in the legal system through amendments or repeals. Chapter VIII of the Constitution of Australia has given power to the legislative body to amend provisions of the constitution which shows that Australia has identified the rule of change and has implemented the same in their legal system. The common law system of Australia has also identified the rule of change through judicial precedents and judicial activism.
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Rules of Adjudication: The rule of adjudication was both prevalent in statutory legal system as well as common law legal system. The legal system of Australia has identified the rule of adjudication through which it has set up courts and other adjudicatory bodies to adjudicate disputes arising within as well as outside the state. The High Court of Australia is the apex court in the legal system of Australia with courts at different states of Australia to adjudicate and provide remedial measure.
Conclusion
Therefore, we come to the conclusion that the positivism theory or legal rules has been identified by most of the legal system of the world which includes both USA and Australia. Moreover. The Statutory legal system and the Common law system also follows the rules of recognition, rules of change and rules of adjudication.
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Question 2 Solution
Introduction
The target of this paper is to decide and examine about the legitimate defense accessible for Sandra May as she was distorted by the retailer from where she contracted to buy a telephone alongside network access, however later discovered that the item and web access was not up to the check as guaranteed by the businessperson. Henceforth, she feels hoodwinked by the exchange and needs to seek after the retailer legitimately. The principle objective is to decide the legitimate implications and proposal for Sandra May regarding whether she can seek for damages after the retailer lawfully.
Issue: Regardless of whether Sandra May can sue the retailer for break of guarantee and good faith?
Rule:
When it comes to considering the standards of agreement law, the rule of good confidence is of most extreme significance in instances of legally binding exchanges. Any understanding framed between numerous individuals includes the guideline of good confidence which is a suggested component in contract law rupturing which pulls in lawful authorizes and harms much of the time (Campbell v Robinson) . This guideline originates from the ethical obligation of behaving, particularly if there should be an occurrence of business elements. A rupture of good confidence and reasonable managing can likewise make the entire contract void and even voidable at the alternative of the influenced party (Kirke La Shelle Co. v. Paul Armstrong Co. . Another component in such manner is distortion that is finished by the retailer as Sandra May feels that she has been misled. Distortion can likewise make an agreement void and can be a ground for ending the understanding (Bisset v Wilkinson) . Purchasing from shop has a little extraordinary sign as it doesn't comprise an offer at first and an understanding is framed when the buyer is prepared to pay the sum the shop requests along these lines it is an encouragement to treat where the buyer can offer to purchase and it is up to the shop whether it will consent to the offer.
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In the current circumstance, Sandra May procured a telephone with network access where she acknowledged a plan of 10gb of web access and a telephone with boundless local calls and the plan that she acknowledged expressed that she can keep the telephone and the modem that gave web access after tolerating that bundle. Inevitably, in the wake of utilizing the telephone and the network access, Sandra May found a few issues with the items and furthermore the web access. To start with, the web access was not up to the stamp as the speed would back off even before the limit of 10 GB isn't completely finished. Despite the fact that it could be fathomed by extra packs yet she feels tricked and does not feel that her speculation merited the cash she paid. Presently, the telephone that was given to Sandra May was likewise not in a decent condition as she observed it to be pre-utilized and worn in a few regions, alongside that even the battery and console was tricky. Notwithstanding, after moving toward the shop jjNet declined to supplant the item however she discovered some noteworthy issues with it.
Presently, there are a few complications in such manner in connection to legally binding debate that happened between Sandra May and jjNet due to specific components that makes an agreement void. To start with, there is an issue of deception with respect to the shop. Business substances has the privilege to charge higher measure of cash as long all things considered inside the domain of law yet beguiling clients has no consistent thinking that can be legitimized with business rights. Along these lines, the shop jjNet distorted a few actualities with respect to the telephone to be great and new yet Sandra May observed it to be exhausted and old where the console was not working appropriately. Such a blame in an item is an entire risk of the shop due to improper introduction with the expectation to misdirect. On account of "Edgington v Fitzmaurice" , the court laid out the standard of deception which whenever connected in such manner will make the shop obligated for distortion and should pay for harms.
Second implications that can be watched is, break of good confidence and fair dealing. Good faith is simply the rudiments of directing in the business showcase. Without good faith potential clients can't be held and can make an understanding void at the alternative of the influenced party. The most celebrated milestone case container of "Carter v Boehm", can be alluded to for understanding the great confidence standard where the court held that, great confidence is the overseeing guideline of the considerable number of agreements and is an unquestionable requirement in legally binding assertions. Accordingly, applying this to the present circumstance it tends to be said that, the shop was not acting in compliance with common decency as it didn't give the client what was guaranteed and hence ruptured the guarantee.
Conclusion and Recommendation
In order to conclude on the present issue, it may very well be said that, Sandra May can sue the shop for rupture of guarantee and the most vital for dissimilarity from the standard of good faith and reasonable dealing as chosen by popular customary law cases in which contract is based. Distortion was likewise an offense submitted by the shop drawing in legitimate endorse in type of harms as allowed by contract laws. Thus, it is prescribed that, Sandra May can sue jjNet for legally binding contract as there was guaranteed significant breach of good faith which is a good law under the common case law based legal regime followed in Commonwealth nations. Contractual breach is a civil wrong where liquidated damages are paid to the aggrieved party in case of such misalignment from what is promised.
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