HA2022 Legal laws and contract: Written Report and Presentation Assessment Answer
Legal laws and contract
Answer to question no-1
Does George can take action against Anita for the breach of Contract?
Does the relationship of friendship does not makes a Contract?
A contract is formed between two or more than two parties. The partnership deed is an agreement between two partners that is also called business partnership contract. The contract defines that both the person has agreed with the terms and condition of the business. It is generally relating to the provisions that concerned with financial reporting, capital contributions and the responsibilities of each partner (Scott and Scott, 2015). The partnership agreement in writing is more successful than the agreement made between the parties orally or by handshake. Both the partners are equally responsible for binding the partnership (Rouhani, et.al, 2018).
According to the Partnership Act partnership that the partner cannot open a competiting business nearby without the consent of other partner but can open a different type of business. If the partner does so and open a competiting business nearby than the other partner has the right to remedy to recover profits from the partner’s competiting business (Iossa, and Saussier, 2018). The opening of a competiting business nearby is a breach of a contract by the partner. In Foran v Wight  HCA 51; (1989) 168 CLR 385 (15 November 1989) case it has been found that if the partner act is against the clauses of agreement than it is termed as the breach of contract. The court held that the plaintiff had breached the contract by breaching the clauses of the agreement (Haapasalo, et.al., 2015)
The partnership is a business where two persons shake hands for doing business and it is often started by friends. The partnership deed is often made if any disputes been arise in future that can be handled. The disputes can be if the partner wants to leave the partnership than what will be his/her liability in the business and there is also the non competing clause also been there in most of the partnerships agreements (Bayern, 2015).
As per the law of contract if the friends comes into the partnership the court presumes that the partners has the intention to come into the partnership and to form an valid contract these essentials of contract must been fulfilled to form a legal relationship between the partners:-
Offer- The offer between the friends to share profits and loss
Acceptance- The acceptance by other partner makes a valid contract
Consideration- The consideration been that sharing of the expenses or making the investments by both the partners will be considered as the execution of the partnership deed.
In Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 case, there is agreement between the parties with the intention to create legal relation and the consideration been taken by the parties considered to be a contract (Joshi, 2019).
The facts of the case:--
- Anita and George are friends and they both have agreed to open an fast food restaurant
- Their solicitor had made a partnership agreement which have been signed by both George and Anita
- In partnership agreement each parties rights and obligations has been provided
- The business became succeed but as the time passed the arguments had been started between both the partners that who will run the business.
- After a year forming their business one day with a heated argument between Anita and George. Anita left the shop
- Anita has challenged and said to George that she will open a rivalry business and make him out of business
- Anita business does very well
- George due to Anita business started to suffer loss
According to the scenario the George and Anita had signed the Agreement that means that both the parties have legal intention to form a business. The offer had been made by the one party to another and both the party has given their acceptance. In accordance with the contract law if there is offer and acceptance and there is also consideration to share profits and losses that means the contract has been executed between both the parties as established in the case of Australian Woollen Mills Pty Ltd v The Commonwealth.
According to the Scenario the rule states that in accordance with the Partnership Act the partner cannot open a competing business nearby without the consent of the partner. Anita had opened a rivalry business nearby to their partnership business of George. According to the rule Anita has breached the contract and she is liable for paying the remedy from the profits of the business as established in the case of Foran v Wight.
As argued by Anita that they had opened a business as friends and there was no agreement between them but as per rule there is a execution of a contract and they have decided to do business that means there is a legal relationship between the both parties. It means that she is responsible for the contract and the breached the terms of contract. Anita is binding with the contract with George and cannot open a competitive business nearby according to the rule.
In the conclusion, it can be said that George and Anita have signed the partnership deed and therefore there is a legal relation between both the parties and both are responsible for the execution of contract. They both are bound in the legal deed and if any person fails to comply with the any of the terms then other party will ask for the compensation. Anita had breached the contract by opening a rivalry business nearby to their business. Therefore Anita is liable to pay remedy to George.
Answer to question no-2
- Does Anna will succeed in his claim against Michael for Negligence?
- What is required by Anna to establish his claim for such action?
- Does Michael have any defense for the claim made by the Anna under civil liability?
Under the civil Liability Act the tort of negligence is highly depends on the recognition of the existence of duty of care which is owned by one person to another person (Plunkett, 2018). The duty of care states that one person shall have exercise proper care and skill towards another person. The recognition of duty of care within the remit of law of tort shall been provided that it will be looked whether a person can take a reasonable care to avoid the foreseeable harm to others (Mitchell, 2017). The claimant has the responsibility to prove that the defendant has the liability over the claimant than only duty of care will establish and the defendant will be liable to pay damages to the claimant. In Vairy v Wyong Shire Council (2005) 223 CLR 422 in this case the court had refused the appeal of the plaintiff in which the plaintiff has claimed that there is no warning provided that there is a risk of injury while driving in coastal waters of variable depth. Plaintiff had dived into the sea from the rock platform and got injured. In this case plaintiff argued that the defendant owned a duty of care towards the Plaintiff (Foley, and Christensen, 2016). It was stated by the Court that the diving into the water of variable depth is dangerous and it is both obvious and inherent and therefore the defendant does not owes a duty of care toward the plaintiff (Nelson, 2018).
The plaintiff claim against the drunk driving based on the negligence. The plaintiff has to prove these four elements that are:-
- Duty of care has owned by the drunk driver towards the plaintiff
- The driver has breached the duty
- The plaintiff has been injured in some way
- The breach by the drunk driver is the cause of injury (Fox, 2017)
Negligence Per Se- According to the jurisdictions it is easy for the plaintiff to claim the fault under duty of care but according to negligence Per Se there is no duty of care required to be proved if the injury has been happened to the plaintiff by violating the public law by the defendant (Ben-Shahar, and Porat, 2016).
In British Columbia Supreme Court in Park v. VW Credit Canada Inc. 2017 BCSC 1733 case, it was found that there if the passenger knows that the driver is drunk and then the passenger is also contributory to the damages and the court has reduced the 20 percent of damages paid by defendant to the plaintiff. The court found that the deceased was the contributor in the negligence and therefore on part of contributory negligence the defendant damages had been reduced (Oladimeji, Adebiyi, and Gambo, 2017).
The facts of the case:-
- At late night Anna was waiting for the taxi to take her home from the place of her work
- Anna was too happy to take the lift from Michaela rather than waiting for the taxi
- Anna smelt that Michael was strongly having Alcohol
- Michael is troubling the vehicle on the road
- It was heavily raining outside and Anna prefer to go with Michael
- Michael thereafter lost the control over the vehicle and hit the tree
- Both Michael and Anna was heavily injured
- Anna claimed damages from Michael for the negligence
According to the rule the plaintiff Anna has to proof whether there is a duty of care of Michael towards the Anna. The rule states that there shall been a duty of care in negligence of one person towards another. Michael has the duty of care towards the Anna. However according to the case Vairy v Wyong Shire Council the plaintiff knows that the diving into water cause the injury and same sitting with drunk driver also causes the injury Michael not been held responsible and does not liable to pay damages. There is no duty of care arise towards Anna of Michael as she knows the consequence of the act.
Anna for establishing his claim has to prove according to the rules that the Michael owes a duty of care towards the Anna. The injury has been caused to Anna. The reason for the injury is that Michael has breached the duty of care. Anna can also prove Negligence Per se where there is no need to prove the duty of care as the injury has caused due to the violation of public law.
In Accordance with the case British Columbia Supreme Court in Park v. VW Credit Canada Inc case, Michael can take the defense that there is Anna is contributory negligence as she knows that he is drunk and then also she was seated in the car and therefore he can challenge the damages that have been claimed by Anna. Therefore, after assessing the given case study, it is clear to find that there is no duty of care arise towards Anna of Michael as she knows the consequence of the act.
After assessing the case, it could be inferred that there is no duty of care arise towards Anna of Michael as she knows the consequence of the act. It can be said that Michael owes the duty towards Anna but in some cases he is not liable. Anna for establishing his case has to prove that there was a breach of duty of care by the Michael and the injury has happened due to that breach. It has also been conclude that Michael under the civil liability can challenge the damages by taking a defense of contributory negligence by Anna.