One of the Most Overlooked Options for All about Me Essay

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Contract Law Flexibility Honesty and Fairness

Question: Discuss about theContract Lawfor Flexibility Honesty and Fairness. Answer: Introduction Contract law plays a significant role in the commercial activities of any Jurisdictions. The law has created rules of practice that ensure that promotes market fairness and efficiency among the traders in Australia. It is not in doubt that the law of contract has changed and evolved immensely over the recent decade with the legislature and the judiciary making major contributions to its growth. This research paper is thus poised to keenly investigate some specific facets of contract law in Australia, including their growth and application in the real commercial world. Further, the role that these laws have played to ensure honesty fairness and justices will also be discussed. It is imperative to note that there has been a fundamental and absolute sway from the traditional approach to several doctrines in contract to ensure that parties in agreements are not left on the loosing side of the scales of justice. The law of contract has since been made more flexible. It can be argued that it has grown to be more fertile in the recent past with the room for its reform equally burgeoning. Flexibility Honesty and Fairness in the Application of Contract Law The first doctrine that shall be observed is one that the courts have shown the willingness of not giving it the strict application that was bequeathed by common law. This element of contract law is referred to as the intention to create a legal relationship in business agreements. The traditional approach that had been hitherto embraced by the courts is the application of the rebuttable presumptions test. For social agreement the presumption was that the parties did not intend to create a legal relationship between them (Merritt V Merritt 1970). For commercial agreements the presumption was that the parties in the agreement had the intention the terms in the agreement will be legally binding .What is of interest is that to promote fairness and flexibility of the judicial decisions in Australia appear to be extinguishing the traditional doctrine of rebuttable presumption test to ensure that they address each matter that comes before it with an objective eye taking all factors into co nsideration. Among the recent case that seems to extinguish the traditional doctrine of rebuttable presumption to determine the intention of the parties is Gray v Gray (2004) where the courts have shown notable reluctance in applying the presumptions test. The case concerned a loan agreement between a mother and a child and the judges said that each case should be treated as different and special to determine the intention of the parties. The courts have also recently stated in Ashton v Pratt (2014) that the courts should objectively examine the circumstances of each case because a miscarriage of justice is likely to occur if the courts solely apply the rebuttable test. It can be observed from the above contentions that the courts are keen to ensure that the parties in commercial agreements and application of contract law are treated fairly and thus it seems indispensible that some old doctrines have to be given less or no attention at all. The doctrine of Privity in contract law is a formidable rule that dictates that it is only parties to a contract who can enforce a contract. In fact, in Trident General Insurance Co. Ltd v. McNiece Bros. Pty. Ltd. (1988) the rule has been that contracts cannot be made for the benefit of third parties. Some states in Australia have since eroded this doctrine and given life to the rule that a contract can also be made fro the benefit of a third party (Property Law Act 1974 (NT) section 56). It should be borne in mind that this position is however not uniform in all states. The idea inherent in this shift in legal position is that there commercial traders who end up losing a lot money during trade because of rigid doctrines that have been inherited from common law rules. Indeed the requirement of honesty and good faith in commercial agreements has been necessary in commercial contracts to ensure that parties in the contract are treated fairly. What seems to be an overridden doctrine which was also brought by the common law is Caveat emptor. This doctrine asserts that let the buyer be ware and the seller is not obliged to disclose any information. It has been argued that the doctrine had given ample opportunity for the sellers to practice dishonesty because the task of enquiring all the status of a particular commodity is an onerous one for the buyer. This implied that if the purchaser of a commodity found that the good is not in a good condition they could not seek for compensation because they did not check the quality of the product during the purchase. It is worth noting that this gave room for the seller to give misleading and deceptive information knowing that the buyer will not bring him or her to question. A more modern approached has been emp loyed in Australia which follows the principle that the let the seller be ware (caveat venditor). In this sense there have been provisions that have been developed lately in the Australia consumer law that mainly protect the consumers and require the sellers to give product safety guarantees on their products before they engage in any commercial dealings. Pursuant to section 20 Australia consumer law (2010) misleading and deceptive conduct in commercial trade and contracts is prohibited. The courts have embraced this approached given life by the legislature and have interpreted that parties engaging in a contract should be honest and ensure that all material fact are disclosed before parties sign a commercial agreement ( Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd 1988). It is apparent from the aforementioned assertions that the where a party to a commercial agreement is silent and fails to disclose material important facts required in the transaction, this will be regarded as dishonest and unfair. The general law in contract is that an agreement that has been duly signed by the parties to the contract is binding on them even when one did not read the terms of the agreement (L'Estrange v F Graucob Ltd 1934). This rule appears harsh and a remedy has been provided by the vitiating factors such as duress and undue influence. But the common law had not taken care of extreme cases where a consumer is seriously harassed by the seller, a condition that the Australian jurisdiction has said that is more detrimental than mere duress and undue influence. The legislature Australia came up with the provisions of unconscionable conduct in the Australia consumer law section 21(1) to ensure that they protect contracting parties from the harsh conduct that seeks to take advantage of another party who may be green on the subject matter that the parties are contracting. This provision of the Australia consumer law appear to be promoting fairness and honesty in the commerce and trade because if th e strict application of the general law that the contract is binding once has been signed is applied, it will be unfair to the innocent party who was induced to enter the contract and the harsh application of the law will amount to a mockery of justice. To promote fairness the courts have further held that the innocent party in the trade or commerce must show that the other party had a high bargaining power which he took advantage of (Kakavas v Crown Melbourne Ltd 2013). The forgoing assertions also have the effect of ensuring that the parties in a contract or any commercial dealing have the freewill to enter into any commercial dealing and that unnecessary pressure and inducement should not be applied to force a party to enter into an agreement. On the face of it, it may be apparent that pre-contractual good faith and honesty is not necessary in commercial dealing. In fact, traditionally English law did not have the desiderata of honesty and good faith between the parties before a contract was made (Walford v. Myles, 1992) Lately there has been a willingness and readiness that has been manifested by the judiciary to legislature to insist on the parties of an agreement or trade to uphold good faith and honesty before they enter into contract (Philips Electronique Grand Publique SA v. British Sky Broadcasting Ltd. 1995). This is not only the position of the united kingdom but Australia Consumer law has also a adopted a requirement of good faith and honesty in its provisions. Parties in a commercial dealing or trade are not supposed to engage in misleading and deceptive conduct before the contract has been formed. (Australia Consumer Law section 18). Misleading advertisements have been held to be contrary to the provisions of h onesty and good faith that is required of manufacturers and service providers. The courts have also had a high interest in ensuring that pre-contractual good faith is upheld as has ben demonstrated in Google Inc. v ACCC (2013) where the internet website Google was running advertisements on its website that were deceptive and misleading and did not reflect the true nature of the product. The court held that such a conduct was prohibited by law and found liability on the service provider in that case. It has been argued that a misleading and deceptive conduct can be in the form of assertions that lead an individual into an error or they could be false statements of fact that an ordinary person could reasonably not know the truth in them (Australian Competition and Consumer Commission v TPGInternet Pty Ltd 2013). This position has now become an overarching and formidable rule created by the judiciary and the legislature. This new rule on misleading and deceptive conduct seems to be rep lacing the tradition common law rule of misrepresentation of facts. Essentially the rule seeks to promote fairness and honesty in the contracts in commercial dealings and that the sellers should ensure that they are truthful in all their engagements in commercial trade. The general in contract law is that a contract will be invalidated where either of the party that signs the contract is a minor and has not attained the age of majority. It is assumed that such persons do not have the understanding of the implications of what they are singing to. The common law position is that contract with minors will only be of necessity items such as food and clothing (Nash v Inman 1908). What is particular significance to note is the fact that there has been some willingness among some states in Australia to accept contracts that are entered into by minors as valid. The test that seems to be applied here is that one of reasonableness and ability to have the sufficient reasoning required to understand the terms in the agreed contract. This has been seen to promote justice and fairness because some minors may be intelligent and industrious enough to enter into a commercial dealing. Additionally it has also been recognized hat it should be in the interest of justic e that a person who is mentally incapacitated to enter into contract to be allowed to make an agreement during their lucid moments. This may not be the universal position in Australia but there is a judicial willingness to adopt the rule into a permanent law in some states. From a biblical perspective in the book of Isaiah, the bible proclaims that those who will survive the punishment by fire must practice fairness and honesty while they avoid gaining any benefit through fraudulent activities and avoid doing what is morally wrong (Isaiah 33:14-17) Accordingly the bile in Proverbs 11:1 argues that the practice of dishonesty and impartiality are a disgrace to the lord. As such it is perfectly demandable and desirable that in commercial dealings and trade parties should ensure that they do not benefit from what is genuinely and legally does not flow from their efforts and as has been demonstrated by the recent contract law rules developed in Australia, the major aim is to breath life into the teachings of the Holy Book. Emerging Trends The idea of electronic contract has not been there in the past because there was in development of technology case may be in the recent times. According to Martin and Jaques (2001) electronic contracts have been facing the major challenge of ensuring that they comply with the capacity provisions that are required of the traditional contracts that are made by pen and paper. It begs the critical question whether it would be just and fair to treat the electronically made contracts with the same rules that apply in the traditional contracts. It is not in dispute that there is already in existence rules regarding invitations to treat, offer and acceptance in electronic contracts. However according to Carter and Harland (2002) electronic agreements and commercial dealing defy the rule of privity of contract because a purchaser in a contract agreed in a website commerce dealing ,may fail to trace the other party in the contract to endure that they enforce the contract against them. As such it seems preposterous and unfair that one party will have to suffer a great deal of injustice because of the impracticability of the enforcement of the contract. There is also great need to promote justice and fairness in commercial dealing that are made and agreed over the mobile phones through short message service (SMS). This need was demonstrated by the courts in Communication and Media Authority v Mobiligated Ltd a company Incorporated in Hong Kong and Others (2009) where the court had the vie that injustice would most likely occasion a party in such a commercial dealing where there is little judicial ink hat has been split over the matter. Conclusion It can be conceded that the approach that has been taken by the courts and the legislations in repealing the old common law doctrines that the doctrines of equity did not sufficiently provide for has had a positive impact towards the development of fairness and justice to the parties in commercial dealings. Suffice to say innocent parties that did not hitherto have remedies against dishonest parties in trade have a reason to celebrate the new position that the judiciary and the lawmakers are taking. Parties in commercial trading should also be guided by the teachings in the bible and make peace with the fact that their ill intended actions will also be jugged by the Most High in heaven. References Australian Competition and Consumer Commission v TPGInternet Pty Ltd 2013 HCA 54 Australia consumer law (2010) Ashton v Pratt [2012] NSWSC 3 Carter, J. W. and Harland, D. J. (1993). Cases and Material on Contract Law in Australia Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong - [2009] FCA 539 Gray v Gray [2004] NSWCA 408 Google Inc. v ACCC (2013) 294 ALR 404 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 Kakavas v Crown Melbourne Ltd Ors [2013] HCA 25 L'Estrange v F Graucob Ltd [1934] 2 KB 394 Martin, N. and Jaques, M. S. (2001). The Effective Formation of Contracts by Electronic Means. New South Wales Society for Computers and the Law Journal. Available: https://www.nswscl.org.au/journal/46 Merritt v Merritt [1970] 1 WLR 1211 Nash v. Inman [1908] 2 KB 1 Philips Electronique -v- British Sky Broadcasting Ltd [1995] EMLR 472 Property Law Act 1974 (NT) Trident General Insurance Co Ltd v McNiece Bros Pty Ltd. (1988) 80 ALR 574 Walford v Miles. [1992] 2 AC 128

The Houyhnhnms In GulliverS Travels Essays -

The Houyhnhnms In GulliverS Travels The Houyhnhnms in Gullivers Travels In the last part of the novel Gullivers Travels, by Jonathan Swift, a dichotomy is established which crtiticizes two extreme ideas of man. The Houynhnms, a race of horses, are meant to symbolize man as a supremely rational being and the Yahoos, a primitive, vulgar version of humans, are made to symbolize man as an animal. The narrator Gulliver is a sort of reference point between the two, since in physical appearance he seems to be a Yahoo, but his ability to reason enables him to relate well to the Houynhnms. Readers have interrpreted the rational horses in a number of different ways. Some feel that the Houynhnms are the ideal to which humans should strive to attain. Others feel that the Houynhnms are as evil as the Yahoos. It is my opinion that Swift uses the Houynhnms and the Yahoos to illustrate both ends of the unattainable spectrum of reason, and why both are completely undesireable ways of life. It is implausable to think that the Houyhnhmns are the ideal way for man to be. They have no writing system, as well as no passions, no love for family or friends, no real opinions and they are governed solely by Reason. Their lack of strong feelings can be understood through their attitude to their offspring; They have no fondness for their Colts or Foles, but the Care they take in educating them proceeds from the dictates of Reason. Indeed, Love plays no part in even the institution of matrimony. Mates are selected based on their coloring, and to produce offspring that will enhance the species as a whole. Even death evokes no emotion among the Houyhnhnms; If they can avoid Casualties, they die only of Old Age, and are buried in the obscurest Places that can be found, their Friends and Relations expressing neither Joy nor Grief at their Departure. Why would the human ideal be existing as emotion-less, passion-less creatures devoid of feeling and driven purely by reason. Although Gul liver so admires them, Swift does not mean us to take this admiration seriously. When Gulliver first encounters the Houynhnms, he takes an immediate liking to them, saying Upon the whole, the behaviour of these animals was so orderly and rational, so acute and judicious, that I at at last concluded they must needs be Magician. This admiration grows and grows until he quickly comes to believe that these creatures are perfect in every way possible. The fact that these creatures are horses, not humans, symbolizes how Swift believes that no humans can be so perfect. The extent to which Gulliver worships these creatures is further delineated by his self-loathing; When I happened to behold my Reflection of my own form in a lake or a Fountain, I turned away my face in Horror and Detestation of myself. Gulliver even tries to imitate them in a ridiculous attempt to be accepted in their society. Gulliver can be looked upon as a human, trying (in an effort to escape his animal tendencies) to become supremely rational which is a futile effort. Man can never be purely rationa l because man is an animal. Being face to face with man in his animal form (the Yahoos) further propels Gulliver into his futile effort to be completely reasonable and logical eventually leading to his insanity. Once Gullivar leaves the island, he is disdainful towards the rest of his race who he sees as vulgar Yahoos. His new attitude towards his fellow man is displayed in his treatment of Don Pedro. Don Pedro treats Gulliver with nothing but kindness and affection, and yet Gulliver repays him with disgust. The same happens when he is reunited with his wife and children. He has so adopted the belief system of the Houyhnhnms that he views them as primitive, ugly beast-like creatures and he is filled with contempt for them. In an effort to gain some form of Houyhnhmn companionship, he buys two horses and converses with then for hours upon end each day. Is this the way man will end up should he attempt to become a purlely logical being, such as the Houyhnhnms? This seems to be the poi nt that

Contract Law

Contract Law The case under discussion has all the hallmarks of a contract law dispute. The present paper demonstrates the reasons as to why the defendant’s motion on the case should be overruled. More importantly, it shows why the plaintiff should be compensated as requested for wrongful termination of services.Advertising We will write a custom case study sample on Contract Law specifically for you for only $16.05 $11/page Learn More As the judge in the case, I would rule in favor of the plaintiff and oblige the defendant to pay for the damages as requested. Available literature on such cases argue that there can be oral manifestations of assent in a contract (Barmes 437; Wilkinson-Ryan 2110), and that such oral manifestations mean that parties to a contract communicated to each other about their agreement (Estlund 381). This in effect means that a contract may not necessarily be delivered in writing as argued by the defendant when citing the stature of frauds. In consequence, the rights of the plaintiff to gainful employment were effectively violated when the defendant chose to terminate the employment even after orally assuring the plaintiff that employment would continue for a substantial period of time. Additionally, the ruling would be in favor of the plaintiff due to the fact that termination of employment was premised upon the wrong reason that was not listed in discussions for engagement. Here, it is important to note that â€Å"a contract is just a tool to procure a service, supply, construction or so on† (Page Krauer 12). However, the law that binds the contract gives it its life and vitality to guide relationships and covenants. The plaintiff’s contractual agreement with the defendant, it seems, was predicated upon the passage of the Madison State Bar examination. However, the defendant proceeded to terminate the services of the plaintiff before the lapse of the initial three years even after the plaintiff sat for the examination and passed. This scenario is aggravated by the fact that the plaintiff’s services were discontinued after one year due to budgetary constraints rather than failure to perform as originally agreed during the discussions. It cannot therefore escape mention that the plaintiff was wrongly terminated. Furthermore, the ruling would be in favor of the plaintiff due to the fact that she had not gone against any of the rules set by the defendant to warrant termination of services. Available literature demonstrates that â€Å"employment contracts may have post-employment obligations and covenants, including confidentiality agreements, noncompetition agreements, and nonsolicitation agreements† (Rashty 24).Advertising Looking for case study on business corporate law? Let's see if we can help you! Get your first paper with 15% OFF Learn More The plaintiff fulfilled all these obligations yet the defendant proceeded to terminate her services to the law school in spite of the fact that the reason for termination was not of plaintiff’s making. It is therefore of essence for the defendant to compensate for the lost wages given that the oral agreement insinuated that the plaintiff would offer services for three years before a consideration for promotion was made. Fulfillment of employment obligations on the side of the plaintiff makes the defendant to carry the weight of blame. Lastly, an offer was made by the defendant through a letter and the plaintiff accepted the offer through writing. This in itself demonstrates that the parties entered into a contract. An offer can be described as an expression of willingness to contract on specified terms, while an acceptance can be described as the final and unqualified expression of assent to the terms of a given offer (Chapman Millbrook 1-2). The defendant, therefore, cannot argue that he did not enter into a contract when in essence his offer had been accepted by the plai ntiff in writing. This in itself demonstrates that the plaintiff is entitled to the damages sought. Overall, the defendant’s motion is null and void considering the above named reasons. The judge should rule in favor of the plaintiff and make the defendant compensate her for the financial damages caused due to termination of services. Barmes, Lizzie. â€Å"The Continuing Conceptual Crisis in the Common Law of the Contract of Employment.† Modern Law Review. 67.3 (2004): 435-464. Academic Search Premier. Web. Chapman, Millie and Glenson Millbrook n.d., At a Glance Guide to Basic Principles of English Contract Law. PDF file. Web. Estlund, Cynthia L. â€Å"Between Rights and Contract: Arbitration Agreements and Non-Complete Covenants as a Hybrid Form of Employment Law.† University of Pennsylvania Law Review. 155.2 (2006): 379-445. Academic Search Premier. Web.Advertising We will write a custom case study sample on Contract Law specifically for you for onl y $16.05 $11/page Learn More Page, John M. and James J. Krauer. â€Å"Basic Contract Legal Reviews.† Reporter. 41.2 (2014): 11-15. MasterFILE Premier. Web. Rashty, Joseph. â€Å"Employment Contracts with Post-Employment Obligations.† CPA Journal. 84.12 (2014): 24-27. MasterFILE Premier. Web. Wilkinson-Ryan, Tess. â€Å"Intuitive Formalism in Contract.† University of Pennsylvania Law Review. 163.7 (2015): 2109-2129. Academic Search Premier. Web.

Tradition and Treason

Tradition and Treason Tradition and Treason Tradition and Treason By Mark Nichol Curiously, a word referring to the handing down of beliefs and customs and one pertaining to a breakdown in fidelity to a political system, which is based on beliefs and customs, though they are not antonyms, have a common etymology. This post discusses these words and several others with the same ancestor. The words listed below all derived from tradere, a Latin verb meaning â€Å"deliver† or â€Å"hand over.† That word, in turn, stems from a combination of the Latin preposition trans, meaning â€Å"over† (seen in words such as transfer and transport) and the Latin verb dare, meaning â€Å"do.† Interestingly, however, though to trade is to deliver or hand over (in return for something else), the English word trade is not related; its origin is the Germanic trade, meaning â€Å"course† or â€Å"track† and cognate with tread. (Likewise, the English verb and noun dare is from Old English, not Latin.) Tradition comes from traditionem, referring to an act of delivery or handing over; the adjectival and adverbial forms are traditional and traditionally. (Trad occasionally appears as a slang abbreviation of traditional.) Adherence to tradition is called traditionalism, and one who advocates that philosophy is a traditionalist. Extradition, meanwhile, refers to handing over, as when the authorities in one country deliver a fugitive to those in the country in which he or she committed a crime; the verb is extradite. This fugitive may very well be a traitor to the country to which he or she is being extradited. Traitor, from the Latin noun traditor by way of French, means â€Å"one who delivers,† originally in the sense of information injurious to one nation and beneficial to an antagonistic country. By extension, one who merely betrays another’s trust may be branded a traitor. The act of betrayal is called treason, and the adjectival form is treasonous (and, less often, treasonable, with the adverbial form treasonably); however, treasonously is not employed as an adverb. (Treachery and its similarly inflected adjectival and adverbial forms is a similar-looking but unrelated synonym.) Speaking of betray, that word’s root stems from tradere as well. (An act of unfaithfulness is betrayal, and the actor is a betrayer.) Want to improve your English in five minutes a day? Get a subscription and start receiving our writing tips and exercises daily! Keep learning! Browse the Vocabulary category, check our popular posts, or choose a related post below:4 Types of Gerunds and Gerund Phrases5 Brainstorming Strategies for Writers20 Tips to Improve your Writing Productivity

Interpretation of financial statements (report) Essay

Interpretation of financial statements (report) - Essay Example To keep an investment with a company or its shares is a decision that should be viewed by an owner or investor in terms of cost-benefit analysis just like any purchase transaction. The expected benefits must have to be quantified or measured in order to guide decision making better. A company is generally assumed to growth over time in certain finance models. (Brigham and Houston, 2002). It needs to have profitability, efficiency, liquidity and solvency to survive, grow and stay in business. It competitors would always be there to match every strategy that it unleashes; thus, the strategies to be used must consider its external and internal environment in order to compete well in an industry that is affected by many hard to control factors. External factors need not be avoided however, since companies have employ strategies that would help the to develop strategies that would help them cope with the changing external environment. The return on capital employed (ROCE) of WBS Ltd. at for the last two years 2009 and averaged at about 17% as against the industry average of 20.3%. WBS Ltd. is obviously less profitable than ordinary competitors in the industry in both years. ROCE also declined to 12% in 2010from 22% in 2009. Such declined performance could not be an indication of some problem as it is still very high. Profitability was lower also compared with 2007 and 2008 ratios. See Appendix B. A more than 15% return on capital employed (ROCE) would definitely attract investors as it would mean that for every $100 the investors expect returns of about $15. This could be viewed as something high during normal times or when there is no recession. The present situation of the economy may be described as recovering. The fact the company is slight not doing better than the rest of the industry must convince owners to keep watch their profitability if not their investment with the company may

Creativity and Play Essay Example | Topics and Well Written Essays - 2000 words

Creativity and Play - Essay Example Creativity likewise has many denotations and connotations in the English language. Creativity is hallmarked by intrinsic motivation, intention, adaptiveness and originality. It is what the person does, either the creative act or something aesthetically brand new and purposeful to the individual child. Original means it is not habitual and shies from routine. Creative has the implication of unconventional and intrinsically motivated. Intentional actions are not governed by conventions or extrinsic rewards (Sternberg, 1999). This essay will reflect on the importance of play in developing creativity. It seeks to analyze the different theories that are posited to reference childhood play and offer an evaluation of creativity across the early childhood curriculum’s in the United Kingdom (UK) namely; the Early Years Foundation Stage (EYFS) and the National Curriculum (NC). Reference will be made to personal experience underpinned by relevant theory. It will begin with theoretical descriptions of creativity and play while exploring each construct separately and in relation to each other. The discussion will then follow early childhood education theories. Furthermore, the roles of teachers and parents in relation to creativity and play will be identified. Creativity is defined as a process involving the production of remote associations through thinking outside the box while possessing divergent or unusual, if not, original ideas. In creative play children develop their practical skills through imagining, designing and creating. Educational experts have developed standards defining what children should know and be able to do by certain grade levels. The content children learn in the creative curriculum is guided by these standards. The creative curriculum explains how to teach content in ways that respect the developmental stages of children. (James C. Kaufman, 2006) Teachers