1 BULAW5914 Commercial Law – Assignment Information about the Assignment: Due date Friday, 23:00, Week 9. How to submit The assignment must be submitted in word format through the Turnitin submission...

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1 BULAW5914 Commercial Law – Assignment Information about the Assignment: Due date Friday, 23:00, Week 9. How to submit The assignment must be submitted in word format through the Turnitin submission link on Moodle. Topics covered by Assignment Topic C Maximum word limit 3000 words Total marks 30 Percentage of final grade 30 Referencing APA 7th edition or AGLC 4th edition (available online) Reference list/ Bibliography? Yes Assessment criteria: The assignment will be assessed on the extent to which the student has:  Conducted independent research relevant to the topic, including the use of secondary legal sources, in particular a number of legal texts, authoritative materials from internet sites and academic (peer reviewed) journal articles and books.  Answered the set question(s) through identification and discussion of relevant legal issues.  Demonstrated an understanding of the topic, presented different points of view (if applicable), presented well-constructed arguments and demonstrated critical thinking.  Provided proper citations for legal sources in footnotes and a bibliography or reference list.  Used clear expression. 2 Assignment Topic: This assignment requires students to answer based on the material covered in Topic C only. Students should refer to relevant case law and legislation in the answer. Question 1 (15 marks) Acme Pty Ltd runs a carpark in the city. Acme want to have an exclusion clause that applies to all contracts with carpark customers to ensure that Acme is not liable if a customer’s car is stolen or damaged when parked in the Acme carpark. The following is the procedure for customers to use the carpark:  The carpark customer receives a small ticket from a machine located at a boom gate at the entrance to the carpark.  The customer pays for their car parking by inserting their ticket into a machine and paying with cash or credit card before they collect their car to leave.  These machines are located at each level of the carpark.  To exit the carpark, the customer inserts the paid-for-ticket into the machine at the boom gate.  Usually customers do not meet or speak with any Acme employees at any time during their visit.  However, customers can speak to an employee by pushing buttons on either the ticket dispensing machine or the payment machine. Required: Provide Acme with legal advice so Acme can put in place an enforceable exclusion clause that would be a term in each contract with their customers. (Question 2 on next page) 3 Question 2 (15 marks) Cathy and Josh are building a house in Ballarat. They have entered into a fixed price contract with a local builder, Wellbuilt Homes Pty Ltd. The total price for the build is $205,000. Included in the contract is an allowance of $4,500 for vinyl plank flooring throughout the house. The builder instructs Cathy and Josh to make a selection of vinyl planks from Stylezone Flooring who have a shop at Sebastopol. Cathy and Josh look through the samples and choose the sample called ‘Blackbutt’ for the flooring. The sample board is a rich chocolate brown colour. Cathy and Josh explain to Ernie, the salesperson, that they really like the colour as it will match their furniture and soft furnishings. They even bring some cushions and curtain material along with them. They place these next to the sample board and are happy with the colour match. Cathy and Josh sign the order form. Ernie, confirms that the total price of the planks does not exceed the $4,500 allowance and so Cathy and Josh do not have to pay any extra for the flooring. Approximately six months later, the house is complete and Cathy and Josh are conducting an inspection. They are horrified to discover that the floorboards in the house have a reddish tinge. Cathy and Josh are very upset. They tell the building supervisor that they think that the wrong floorboards have been delivered and installed. The building supervisor checks the delivery note and also the packaging for the product and confirms that the boards are Blackbutt Vinyl Planks which is the product listed on the order form signed by Cathy and Josh. Cathy and Josh return to the Stylezone showroom to complain to Ernie and to look again at the sample board. Ernie shrugs his shoulders and says that sometimes there is some colour variation during the manufacturing process and it is too late to complain as the building supervisor accepted delivery of the boards on behalf of Cathy and Josh and the Wellbuilt Homes have paid for the boards. Required: Answer the following questions: a) Identify the parties to the contract for purchase of the vinyl planks. b) Are Cathy and Josh entitled to any remedy against the supplier of the vinyl planks, Stylezone Flooring? c) Would your answer to (b) be different if the order form that Cathy and Josh signed included some fine print that Cathy and Josh did not read, including a statement that the statutory terms implied by the Goods Act 1958 (Vic) are not to apply to this contract?
Answered Same DayMay 20, 2021BULAW5914

Answer To: 1 BULAW5914 Commercial Law – Assignment Information about the Assignment: Due date Friday, 23:00,...

Ishika answered on May 22 2021
143 Votes
BULAW5914 Commercial Law
Answer 1
Exclusion clause which is particularly prone to exclusion / limitation of liability duration of the contract by either party of the contract. The terms mentioned in the exclusion clause in some cases specifically listed in the contract. If it has been excluded or included in the relevant contract only restrictions are enforced. One of the standard terms is incorporated if they are reasonable and fair to draw each other's attention. If you do not give a sufficient degree of the other prominent notice an unusual or unclear term may fail. More unusual or onerous terms
, should be given more prominent.
Disclaimer: If a dispute arises whether it is part of the contract or what exclusions involved, the court will look at the intention of the parties. If there is any doubt as to the intention of the parties, or if the provision is not clear, unclear or unfair, the court will usually apply the rules of interpretation of the clause as follows:
· The disclaimer usually opposes a party seeking to rely on it to explain.
· If you exclude the root cause or the nature or terms of the agreement to go, it is unlikely to be effective.
· If things go wrong on a claim that is beyond the scope of the agreement expected by the parties, the exclusion may not work properly.
· If the exclusion clause is the main purpose of the contract does not match the exclusion may be ineffective.
· Therefore, when drafting the terms of any party tries to use an exclusion clause to its benefit should be very clear.
Whether it is an exclusion clause is valid depends on whether it is part of a legally binding contract between the parties. In general, the contract, including the exemption clause, the terms of any waiver or disclaimer will be effective and the party can rely on the establishment of the contract the person has agreed to contract terms. Sign a document is not available as a protocol, the only way to form a contract from another case where the parties to the transaction implied. In the case where there are problems that may occur, what are the terms of the contract, the parties have agreed to apply to the contractual relationship and have not formally signed.
Contract Law has established that a political party must have a contract provision, notification, such as disclaimers, at the time of the formation of a contract. So people need to know this at the time of the formation of the existence of the exclusion clauses of the contract. This can be done by "real" and "constructive" notice. When the party relying on the terms of the terms actually brought to the attention of the other party, or the other just happened to read the actual contract notice;
When the notification is reasonable and necessary to bring it to the attention of the other party does not actually happen constructively, aware of the existence of the clause, but everything is done by the party relying on provisions. When a person signs the contract, the person will choose whether or not they read the contract by constraining terms of the contract or not. Although the provisions of the contract signed by a party, where the agreement is evidence from the episode hinted agreed terms, it is possible in terms of actual notice to a party or have to rely on all the terms of the debate have done reasonably necessary to bring it to the other side note.
However, Australia's Consumer Protection Act (ACL) may limit the effectiveness exemption clause included in the contract. The ACL has directed to the unfair, unreasonable, harsh or oppressive terms of the contract provisions. For example, ACL provides anyone with a standard form consumer contract, such as the supply of goods or services of one person by clicking on the page, "I agree" button, and agreeing to protect consumer contracts. Against unfair, unreasonable, harsh or oppressive aspects of the protection of laying in the Australian Consumer Law (ACL) and contract law review in 1980 (NSW)
Exclusion clauses be enforced, it must be clear to the circumstances and conditions in which to apply the same along the other side. If you do not follow each other's attention, the exclusion clause will not be executed. Also must be properly incorporated into the contract. This is because in this case, Parker v. South Eastern Railway Co., Ltd. (1877) 2 CPD 416 The court held that if the parties do know the document or the labeling contains terms of the contract, he or she is doomed, regardless of document or flag has read; delivered or placed signs must done in so the other party can take reasonable notice provisions have been in the absence of actual knowledge of the document.
Sometimes, an exclusion clause, waiver or disclaimer may appear in this document does not seem to be a contract. For example, you may find except in terms of receipts or tickets, you did not sign. Disclaimers often are seen where the supply of information, products or services. Disclaimers and other terms and conditions shall apply to the signing of the contract, that is, before the agreed time buyer or user of the viewing point. This exclusion clause is formed by the validity of the contract before considering whether actual or constructive notice assess occurs. This is the case given a receipt signature disclaimers difficult to prove printed notice issued after payment or exemption. In this case, the court held that whether a reasonable person would consider receipts, bills and other documents or part of the contract, and that they should read it. Hutchison asterisk refers to the terms and conditions in the transaction and is subject to rule out a way to draw attention to the existing provisions.
Acme pty ltd so this exclusion must be enforced specifically mentioned car ticket "Terms and Conditions" at the entrance to the parking lot is given by the automatic machine and there is no evidence of local contact with any employee The terms and conditions should be explicitly mentioned, "park at your own risk" under-the-line "Acme Pte Ltd will not be responsible for any loss...
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