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- QUESTION
The case study which students are required to resolve using the four step process is set out below on page 6. Students are required to apply the relevant legal concepts and principles to analyse and solve the legal issues arising in the case study by explaining and applying their knowledge of the legal principles and rules arising in the Australian legal system. You will have to listen to the four step process vodcast in the assessment folder on blackboard prior to attempting this assignment. Please note also that the information contained in the course materials (the text book, lecture and E-learning materials) are sufficient when completing your assignment. It is not necessary to research beyond these materials for the purpose of completing this assignment.
NOTE: • The fact scenario used in this assignment is fictitious. • Students are to focus on answering the assignment questions with reference to the materials covered in topic 3. Students do not need to (and should not) undertake any additional research. The level of detail and information contained in the course materials is sufficient to answer the assignment. • Note the four step process requires students to refer to legislation or case law as authority for the rules of law explained in step two. Where appropriate you will need to refer to any applicable legislation or case authorities contained in the material for topic 3. You may also want to review the materials on referencing that were provided for the first assignment.
In relation to the marks allocated for the overall use of the four step process, structure of the answer and referencing, regard will be had to not just whether the answer is “set out” in the four steps. Consideration will be given to the clarity of the explanation of the law with regard to applicable authority where relevant. Students will be rewarded here for a detailed application of the facts to the law explained. For example, a very good use of the four step process would be the application of the facts specifically to every principle of law explained. Consideration will also be given to the logical presentation, coherency and consistency of the explanation of the law, application of facts and subsequent conclusion. Consequently this will include a consideration of matters such as presentation, formatting, expression, sentence structure, grammar and the like. As a general guide, a student who has used the four step process correctly for each question (has identified the relevant principle(s) of law, explained the rule(s), applied the facts and come to a logical conclusion), but where the explanation of the law or application of the facts is not as detailed as it could be, or the conclusion is not a logical progression of what 2 has gone before, the student would be awarded a pass mark for this part of the assignment, i.e. 0.5 marks. Referencing and appropriate acknowledgement of sources Most often errors in referencing are incidental or clearly inadvertent. In the event of a level one incident of plagiarism occurring, a student may be contacted by the University and required to undertake further training or remedial work in relation to referencing. Where the lack of correct referencing appears to contravene the University policy on plagiarism, the student’s paper will be referred to the Unit Coordinator and dealt with according to University policy. This may amount to academic misconduct. An important aspect of the University Plagiarism Policy is recognition that not all plagiarism incidents are intentional or involves cheating. If students are not learning as expected, they will be made aware of their difficulties and helped to improve. Those who deliberately choose to cheat by way of plagiarism, however, will be identified and dealt with accordingly. Students are strongly advised to understand their responsibilities in relation to correct referencing and should consult the unit outline and powerpoint slides on referencing located on the Business Law Blackboard site for more information. Format of assignments Assignments cannot be handwritten and must comply with the following format requirements. Those assignments, which do not conform to these requirements without prior agreement of the unit coordinator, will either be returned to the student unmarked or will have marks deducted: • Document type: Word or pdf (pdf preferred) • Font: Arial or similar font - no smaller than 12 point in size • Pages: Numbered in top or bottom margin • Spacing: Appropriate line spacing and paragraph spacing • Margins: At least 2.5 cm top, left, right & bottom Presentation • Cover sheet (located on Blackboard under the 'Assessment' tab) must be attached to the assignment • Appropriate sentence structure • Correct grammar, spelling and punctuation • Paragraph size and breaks appropriate • Consistent format • Appropriate use of headings and sub-headings • Within acceptable word limit • Appropriate referencing and acknowledgment of sources
Word Limit The total assignment (meaning questions one and two) should be a minimum of 500 words and not exceed 2,500 words. Please provide a word count on your cover sheet. A penalty of 10% will be imposed on assignments that exceed the word limit. Markers have discretion as to whether to apply the penalty for an additional 100 words, provided the discussion remains relevant. The assignment will not be assessed if it exceeds 3,500 words and will result in a ZERO mark. The word count does not include the following: • cover sheet; • in-text referencing; • referencing list; and • headings. Submission Please read the submission process carefully. Students should understand that compliance with instructions in relation to an assessment task is critical. Students MUST be aware that non-compliance with submission instructions can result in a mark of ZERO. All assignments must be submitted by 1PM (WST) on the Monday of the week the assignment is due, i.e. Assignment two is due Monday, 12 October 2015 by 1PM (WST). Students are required to submit their assignment to Blackboard through a link provided in the ‘Assessment’ folder titled ‘Assignment two’. The assignment will automatically be submitted to the plagiarism detection program, Turnitin. Students are given the option to submit a draft assignment into Turnitin (via Blackboard) to retrieve an originality report for their assignment. To submit a draft assignment, students must upload their draft assignment to Blackboard through a link provided in the ‘Assessment’ folder titled ‘Assignment two: Revision 1’. For more information about the submission process or Turnitin, please refer to the detailed submission instructions on Blackboard within the ‘Assessment’ folder.
Feedback on assignments All of the teaching staff are available to assist you with your learning in this unit. You should contact your lecturer or tutor if you need help understanding the course material or issues arising in the assignment. There is also a staffed discussion board available for students. It is often helpful to share ideas and problems with other students using this forum. You can also contact the unit coordinator if you are still unable to get the answer you are seeking. Please allow 48 hours (two working days) for a response to your query. Unfortunately it is just not possible for the teaching staff to review draft assignments for comment before submission as it is in effect double marking. If you require help with your assignment, either narrow the question or section of work to specific questions. Students will be provided with an answer guide and individual comments on what a student had done well and suggestions for improvement in the future. This will include specific feedback on the use of the four step process. Assessments submitted early will not be marked before the due date. Please refer to the unit outline for the full procedure in relation to penalties for late submission and requests for an extension.
Kate loves to shop, particularly for shoes and expensive clothes. Kate has worked really hard all year to save enough money so that she can take a trip to Sydney for Australian Fashion week. Kate contacts her cousin Suzie who owns a travel agency called ValUtrav Pty Ltd to organise her trip, in particular an airline ticket to Sydney. After chatting about what they did on Saturday night, Suzie says to Kate: “The travel agency can provide you with an airline ticket to Sydney for $1,000, arriving the day before Fashion Week starts and returning the day after it finishes, but you will need to confirm this in writing by 5pm tomorrow. You can send written confirmation of your acceptance by post, facsimile or email.” Kate immediately sends an email confirming that she will take the ticket to Sydney for the dates and price stated by her cousin. Kate then books a room at the best hotel in Sydney for the week. Unfortunately, unbeknown to Kate, Suzie was away sick for the next 3 days. This meant that the airline ticket to Sydney was not issued because Kate’s email to Suzie at the travel agency had not been read. When the oversight is discovered a few days later all of the quoted flights to Sydney are fully booked. Kate is very cross as she has already paid for the hotel. Suzie tells Kate that she is very sorry, but as they had not realised that the email had been sent within the time specified, there is nothing she can do about the tickets at the quoted price. As it is family, Suzie tells Kate that she is happy to provide another quote, however Kate will probably have to pay more and may have to have different flight times. Question (a) 15 marks Using the four-step process, discuss the elements of intention and consideration required for the formation of a contract. In particular, consider whether these elements have been met in order for there to be an enforceable contract between Kate and the travel agency. Question (b) 15 Marks Assume that the elements of intention and consideration required for the formation of a contract exist. Using the four-step process, discuss whether the element of agreement required for the formation of an enforceable contract can be established. Can Kate require the company to issue the airline ticket as originally stated?
| Subject | Law and governance | Pages | 8 | Style | APA |
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Answer
QUESTION 1:
Using the four-step process, discuss the elements of intention and consideration required for the formation of a contract. In particular, consider whether these elements have been met in order for there to be an enforceable contract between Kate and the travel agency.
STEP 1: Identifying the principles or issues in law
For any contract to exist, the involved parties to a particular agreement must have the intention to facilitate creation of legal relations. In this regard, the existence of an intention is to be established in an objective manner by considering the known circumstances, and normally the existence of consideration gives room for this. The intention to ensure creation of legal relations is presumed; therefore, the contract does not need to state categorically that one understands and intends to allow legal penalties to follow.[1]
Moreover, for a contract to be binding, it has to be supported by valued consideration. In this regard, one party makes a promise to do something in exchange for a promise made by the other party to offer a benefit that has value. Indeed, consideration is what either party offers to the other as being the agreed price for the promise made by the other. However, the payment does not necessarily need to be fair. There will be no court intervention where one of the parties has engaged in making a hard bargain unless duress, unconscionable conduct, or fraud is involved.[2]
Step 2: Explaining rules of law relevant to issue of law
In Esso Ltd v Commissioners of Customs (1976), Esso Petroleum made a promise to provide the motorists with free coins for each four gallons of fuel bought in order to promote their sales. In this situation, the issue concerned whether Esso had an intention to become legally bound to the offer to provide motorists with the coins. The court held that the promotion terms intended to be legally binding. In this regard, Esso clearly expected that they would have value to their clients, or else the promotion would not have become successful.[3]
Moreover, consideration has to come from the promisee. In Tweddle v Atkinson (1861), where the couple was getting married, the bride’s father and the groom’s father entered into an agreement that they each pay the couple some money. However, the bride’s father died when he had not paid. Thereafter the son’s father also died and therefore not able to sue on the agreement. Consequently, the groom presented a claim against the person who executed the will. The court held that the groom was not party to this agreement and thus, consideration did not move from him. Ultimately, he was not permitted to engage in enforcing the contract.[4]
Step 3: Applying the Law to facts of the question
An agreement can only be legally binding if the involved parties have an intention to be legally bound at the time it is made. In the case of Kate and Sophie, a reasonable individual would consider the ticket payment agreement as intended to be binding including whether there is consideration.
Here the parties are in business. The facts indicate that there was an intention to make an agreement and Kate had to write a letter and send it via email as a confirmation to receive a travel ticket. Moreover, there was consideration, as Kate was required to pay $1000 for the ticket, which she did. Kate did not foresee Suzie falling sick and failing to receive Kate’s email.
STEP 4: Possible conclusions
In conclusion, it is likely that the ticket agreement is actually legally enforceable since Kate and Suzie intended to become legally bound when they were making an agreement following Suzie’s request to Kate to write a letter. Moreover, there was consideration since Kate was required to pay a subsidized price of $1000 for the ticket.
QUESTION 2
Assume that the elements of intention and consideration required for the formation of a contract exist. Using the four-step process, discuss whether the element of agreement required for the formation of an enforceable contract can be established. Can Kate require the company to issue the airline ticket as originally stated?
Step 1: Identifying the principles or issues in law
Where the elements of intention and consideration required for the formation of a contract exist there can be establishing of an enforceable contract.
Step 2: Explaining rules of law relevant to issue of law
When parties reach an agreement in a business or commercial context, the court deduces that such parties to the agreement had intentions that the agreement would become legally binding.[5] The party that wants to establish that such is not the case will be required to give evidence to prove otherwise. In Ermogenous v Greek Orthodox Community of SA Inc, a religious leader hired by the Greek Orthodox Community sued the Community for the violation of the employment contract following their failure to pay him his leave entitlements. The argument presented by the Community was that the agreement was in the nature of a social arrangement and was not legally binding. However, the court ruled that the agreement was intended to become legally binding and the claimant was eligible to the leave entitlements under the enforceable employment contract.[6]
Step 3: Applying the Law to facts of the question
In the case of Kate and Suzie, the elements of intention and consideration required for the formation of a contract exist. Suzie, being the owner of a travel agency enters into an enforceable contract with Kate. In this regard, Kate is required to pay $1000 on top of sending a confirmation letter for her travelling. In this case, Kate does not foresee the failing of the letter to reach following Suzie’s sickness. In this regard, Kate is not in any way responsible for how the travel agency operates since she has followed all the instructions given by the agency’s owner.
STEP 4: Possible conclusions
In conclusion, Kate should require the agency to issue the airline ticket as originally stated. Suzie should have put in place proper mechanisms to ensure all clients are served conveniently despite any eventualities that may come up.
[1] Richard, Stone. Contract Law Q and A 2003-2004. New York: Cavendish Publishing, 2003. P. 25.
[2] Gillies, Peter. Business Law. Sidney: Federation Press, 2004. P. 164.
[3] Esso Petroleum Ltd v Commissioners of Customs and Excise [1976] 1 All ER 117
[4] Tweddle v Atkinson [1861] EWHC QB J57
[5] Michael, Lambiris and Laura Griffin. First Principles of Business Law.
Sydney: CCH., 2013. P. 78.
[6] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
References
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Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 Esso Petroleum Ltd v Commissioners of Customs and Excise [1976] 1 All ER 117 Lambiris, Michael, and Laura Griffin. First Principles of Business Law. Sydney: CCH., 2013. Peter Gillies. Business Law. Sidney: Federation Press, 2004. Stone, Richard. Contract Law Q and A 2003-2004. New York: Cavendish Publishing, 2003. Tweddle v Atkinson [1861] EWHC QB J 57
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