Whether Valid Contract Between Lianne †Myassignmenthelp.Com

Question: Discuss About The Whether Valid Contract Exists Between Lianne? Answer: Introducation An offer ought to be distinguished from an invitation to treat. When an offer creates a binding contract upon acceptance, an invitation to treat is like an invitation to give offers. A classic example is goods on display, the customer makes an offer to buy, and the seller decides whether to accept the offer or reject the customer's offer. Generally, advertisements are invitations to treat, as seen in the case of Partridge v Crittenden (1968) 2 All ER 425. The negotiations start to take place when someone reads such advertisements. Depending on the clarity of such advertisements, and the absence of the need for further negotiations, the advertisement can amount to an offer and not an invitation to treat (McKendrick, Liu, 2015). In Harvey vs Facey (1893), usually, the statement of price is an invitation to treat. However, if a certain shop has always accepted a certain price, going to the counter would be acceptance of the offer. If a specific price is given for a particular item, explicitly, this will be construed as containing all the terms, thus amounting to an offer. Also, one needs to look at whether further negotiations will be needed and whether the already given terms are sufficient. If the terms are met, then it becomes and offer as opposed to an invitation to treat. Only in particular circumstances an invitation to treat amounts to an offer, as we see in Carlill v Carbolic Smoke Ball co [1893] 1 QB 256. The question to be is asked, if after an offer is made, are there further questions to be asked, or negotiations to take place? Elements of a Contract A contract is deemed to exist when there is an offer, acceptance, then consideration and intention of the parties to be bound by the contract. Offer is distinguished from an invitation to treat, in that an invitation to treat is merely an invitation for customers to submit their offers. An invitation to treat is distinguished from an offer, because it does not have intentions to be bound; it only shows there is willingness to deal (McKendrick, Liu, 2015). The advertisement on Mary's website is an invitation to treat falling under the case of Partridge v Crittenden (1968) 2 All ER 425. The advertisement by Mary invites the public to make an offer on their packages, then they will decide whether to accept the offer or not. There is a starting price of $500 for a group of five and the rest of the prices are negotiable. When Lianne gives Mary a description of what she wants and requests a quote, the quote becomes the offer, because it has a specific amount of $10,000 which Mary will charge Lianne. Therefore, the quote amounts to an offer falling under Carlill v Carbolic Smoke Ball co [1893] 1 QB 256. Lianne proposes that the price is too high and makes a counter- offer asking Mary to take $9500. Mary accepts the offer, but only on a condition that the lower figure is open for seven days and that within that time Lianne should provide a 10% none- refundable deposit. This creates a conditional contract, and in the event that such condition is not met, the offer lapses, and a contract is not created. Lianne is not able to respond to Mary on time and is not able to fulfil the condition of giving her a none- refundable deposit within seven days. Lianne responds on 20th of June, which is ten days later. The contract that was initially created by Mary accepting $9,500 from Lianne was a conditional contract and unless the condition is satisfied, the agreement is not enforceable. Hence, the contract failed on the basis of the condition of seven days and the 10% deposit not being paid on time. When Lianne gets back to Mary on the 20th, a new offer is made when Mary offers $9500 by the next day, and Lianne creates a counter- offer by saying she will want $10,000 due to increased costs. Mary does not want to be quibble and tells Mary that she can go on with the 10K deal. Here, Lianne accepts Mary's offer, and a contract is created. There is offer, acceptance, consideration and the parties have the intentions to be bound by the contract. To sum up, both parties are bound by the contract as per the exchanges made on the 20th. Mary is right about the existence of a contract. However, it is not based on the quote, but the exchanges made on the 20th. This is because the first quote of $10,000 was revoked by the counter offer by Lianne of $9500, and the agreement on $9500 was subsequently revoked by failure to meet the conditions given by Mary. Both parties had intentions to be bund, this a valid contract exists between both of them, thus raising rights and obligations for both parties.Under Australian laws, there is automatic protection and guarantee that services and goods will work and do as a consumer requested. If something does not fit the requested specifications, then one has right to be refunded, get a repair or replacement The Australian consumer Law (ACL) protects consumers and promotes fair trading. The ACL provides a guarantee by suppliers that their services are provided with due skill and care under section (60). If there is a breach of this requirement, a consumer can bring an action for negligence against the supplier or seller of services. The other guarantee are that services ought to be fit for consumption as provided in section 61. This section also guarantees that the supplier of such services is fit and professional in their mode of supply of the services. Reasonable time is also key, in regards to when such services ought to be supplied and reasonable time depends on the given circumstances. A supplier may be subjected to refund, repair or replace under section 260 due to a major failure. The major failure can include; if the goods are unfit for the disclosed purpose by the consumer made during the negotiations. Also, if the goods are of unsafe or of unacceptable quality. If a supplier fails to comply with the consumer guarantees, causing a major failure, section hh268 applies. Under this section, If a contract is formed between the parties for $9500. On 30th of July, which is an agreed date, Lianne and her friends board a boat arranged by Mary. The drinks supplied are Russian food style as opposed to the ordered Malaysian cuisine. Also, the boat was cramped and could not accommodate all Lianne's friends. Then Mary complains to Linane that she is a consumer and she has rights, however, all the food was consumed. Mary supplies services which are fit and professional to a certain extent. We also see that the food was consumed, thus fit for human consumption. From this case scenario, we see Lianne does not assert her rights at the point of the delivery of services. This could mean acceptance of the services as delivered, or waiver of her rights when she accepted to use the services and consume the food as brought to her. Lianne goes ahead and uses the services provided, and consumes all the food. This implies that she was okay with the services provided. Even if she decides to claim for a refund, it will be hard because, she ought to give Mary consideration for all the food and services provided, which she did not reject at the first instance. Mary has already gone through certain expense which she ought to compensate. Lianne perhaps can only sue for minimal damages on the loss of expectations in regards to the small space on the boat. The business advertiser needs to be careful about statements made in its advertisements given that they are subject to legal rules developed by the courts as well as by parliament (through legislation) Advertisements in Australia are subject to legal rules developed by courts and parliament Businesses in Australia market to promote their services and goods. Whatever form such advertisements take, they ought to comply with the law. Some regulations in Australia govern advertisement and marketing like The Australian Consumer Law (ACL). Selling and advertisement practices have rapidly evolved, and apart from Television and Radio advertisement, such advertisement also occurs in the online environment. Such online advertisement includes shipping sites, emails, social networks and search engines. The advertising regulations require that customers must have the whole picture of what is being advertised. The discounts have to be genuine, and the information given should be factual. In an overall overview, the impression is given by and advertisement should not be misleading. The regulations also require that a person should know about running promotions and completion. An advertiser needs to know the regulations governing advertisements before advertising services and products. An honest advertisement is required by law, in as much as it is good for business. When selling services and products, consumer advertisement laws have certain regulations and rules which businesses ought to follow. The ACL covers different areas of advertising. Such areas include deceptive conduct which can be misleading to consumers. This includes disclaimers, information which can be misleading. Section 18, of the Competition and Consumer Act of 2010 discourages advertisements which are deceptive and can mislead customers by omission. An example is making a representation in regards to a future, it ought to be based on reasonable grounds, and otherwise, it will be deemed misleading. Silence and omission can also be considered conduct which is misleading. An ACCC guidance of 2014, April was released to give advertiser's guidance to do their advertisement. Advertisement in social media ought to ensure the information being advertised is accurate. Those managing reviews which are usually made online should ensure reviews do not mislead customers. Where products are grown or originate from is also an important factor in influencing the decisions of customers. A representation of a country made legally should be truthful and accurate (Pearson, 2010). Australian Competition and Consumer Commission (ACCC), which is Australia's national agency concerned with competition matters. Fair trade and consumer practices are promoted by ACCC. The Competition and the Consumer Act of 2012, protects Australia's consumer laws. Laws impose penalties on a misleading advertisement. It does not matter whether the misleading information was intentional of not. Other industry specific regulations and codes govern advertisement in Australia. Such codes include those apply to certain services or products such as financial services, food and therapeutic goods. The Australian and New Zealand Food Standards Code and the Therapeutic Goods Act 1989 (Cth) is the addition which governs these areas of goods and services. Additionally, the Australian industry is self- regulated, whereby there are different codes of conduct in the industry which guide advertisers in regards to how they need to carry out business. There is also self- regulation in regards to compl iance with these codes, however, market pressure is put on the advertisers to comply. Prescription medicine in Australia should not be advertised in Australia; such advertisement is not allowed. Some advertisements discourage use of certain goods like tobacco, which are harmful to a person's health. In Australia, advertisement of gambling services is banned, and any form of such advertisements are not allowed (Pearson, 2010). Conclusion In the global context, the biggest brands such as apple, coca cola and Microsoft have been able to integrate advertisement and law. The consumer Australian law has provided a stronger enforcement through the ACCC. Various internet and telecommunications have obtained fines on misleading advertisements. The ACCC has issues infringement notices to misleading advertisers for breaches which amount to millions of dollars. The ACL is contained in the Competition and Consumer Act of 2010. To sum up, the consumer protections in Australia have sufficiently protected the rights of advertisers because they apply equally across Australia. References Legislations Competition and Consumer Act of 2010 McKendrick, E., Liu, Q. (2015). Contract Law: Australian Edition. Palgrave Macmillan. Pearson, G. (2010). Financial Services Law and Compliance in Australia. Cambridge University Press.