Foundation of a Company and Commercial Law

Question: Discuss about the Foundation of a Company and Commercial Law. Answer: Contract Formation There is a contract between Li Wu and John and Vanessa and John. The contract was entered when the those parties agreed to sign to receive the Certificate of Adrenalin Junkie. Although certificates are not binding in nature, this particular certificate contained clauses that were binding. For instance, the statement that frees John of any possible liability should there be an occurrence of anything. Terms and Remedies for Contract Law Under Common Law Normally, the right and duties of individuals to a contract are decided by the terms of the contract. The terms maybe express or implied. The express terms are ones which are articulated by the parties either in oral or written form. On the other hand, terms can be implied by common law. In other words, due to the conduct or behavior of the parties, normal commercial practice and necessity (Dixon 2005).When evaluating contractual terms, it is necessary to bear in mind that both the pre and post-negotiations of the involved parties conduct may give birth to non-contractual obligations and rights on top of the existing ones. In addition, they may give rise to completely independent non contractual rights and obligations separate from the ones included in the terms of a contract (Dixon 2005). Obviously any untrue pre-contractual statement results to liability for the contravention of the Australian Consumer Law which discourages offering deceptive and misleading conduct. The express terms are terms that the contacting parties articulate before finalizing on the contract. It is easy to identify these terms if they are in a written contract. However, on other occasions they are not very clear. They include: Pre-contractual statements The specific terms delivered or displayed Inclusion of terms during the course of dealing The extrinsic evidence and the parol evidence rule. The effect of signing a written document. On the other hand, the implied terms are the terms that the law implies into an agreement notwithstanding factors such as whether the terms have been discussed by the parties or properly addressed in the contract usually, they may be implied by statue or at common law. In general, at common law, the terms are usually implied where it is required to provide an effect to the motive of the parties (Dixon 2005). John is liable of the damages that faced both Vanessa and Lu. Although he thinks he is free from any liability due to the certificate that was signed however, Lu and Vanessa are covered by the law of the effect of signing a written document. As a general rule, a party is bound by all the terms found in a document that they agree to sign whether they read or comprehended them. As in the case Toll V Alphapharm. In this case, Finemores who were later taken over by Toll, contacted with Richard Pty Ltd who acts as Alphapharm. They entered into a contract to store and at the same time transport goods which were been imported for Alphaphram. Finemores is allegedly accused of perfoming the contract negligently making Alphapharm to lose. He therefore sought to evade liability by depending upon an exclusion in the contract with Richard Thomson. He however could not depend on it since the exclusion never formed part of the contact. This rule has some exceptions such as Misrepresentation This happens when the party giving the terms misrepresents their nature before signing and is unable to depend on the misrepresented terms. Therefore, if one party counsels the other that the particular document does not have exclusions of labiality when they exist, then the party cannot rely on those exclusions even if the document was signed. As in the case of Curtis V chemical cleaning. Mistake (non est factum) This applies where the party signing claims that they did not comprehend the nature of what they signing exactly. Lu and Vanessa are justified to claim for damages since when they were filling the form for the award of the Certificate for the Adrenaline Junkie, they were not aware that it was contact they were not aware that it was contract they were entering into. Therefore, they deserve a full refund of the amount they paid for the gorge scrambling adventure. Also, they should be given bathers and bottles of sunshine since this was an intentional exclusion by John hence causing misrepresentation. The various exceptions in this general rule therefore disqualify John from thinking that he is fully covered because the two signed the Certificate of Adrenaline Junkie. Statutory Guarantee The Australian Consumer Law is currently applied nationally since it does not imply terms into consumer contracts rather it gives statutory guarantees that are almost the same to the terms that have previously been implied (Munro 2009). Since they are not terms implied into a contact, they therefore do not result to contractual remedies rather, the remedies are included in the Australian Consumer Law. John is liable of breaching some statutory guarantees under the consumers law particularly misleading representation in respect to future matters. Under part two he is guilty of having deceptive and misleading conduct (Munro 2009). And part three of the contract where he provided unfair contract terms. He intentionally knew that he had not registered to be a legal tour. Besides, his equipment was not up to yet the place where he was conducting his business was too risky. It was unfair of him to make a certificate become a contract with contractual statements. Most people do not consider an award of a certificate to be a contact and May therefore, not bother reading the contents of the certificate. John should therefore bear full responsibility and pay for the damages that happened to the two. He should also cater for the medical expenses and repair the camera that fell. In addition, he should refund the amount that they paid in full and give them the bottles he had promised as the information he had placed on the website was misleading and inaccurate. Reference List Dixon, W.M., 2005. Common law obligations of good faith in Australian commercial contractsa relational recipe. Australian Business Law Review, 33(2), pp.87-98. Munro, H., 2009. The Good Faith Controversy in Australian Commercial Law: A Survey of the Spectrum of Academic Legal Opinion. U. Queensland LJ, 28, p.167.