Answer To: Instructions: • Answer the following questions, citing relevant legal authorities (law and cases) in...
Tanisha answered on Oct 16 2021
1. Justice means treating equals equally and unequals unequally. It means assessing a law or rule and regulation as good or bad. As per Aristotle, ‘just’ has two different meanings, first is that the conduct must be in accordance with the ‘law’ or the authoritative rule, and the second refers to equality or fair treatment.[footnoteRef:1] For instance, according to the second meaning paying ‘just’ wage means wage that is appropriate as per the type and amount of work to be done. Hence, both law and justice overlap with the law passed by the ruler. It depends on how justice demonstrates itself: in the form of authoritative rule or equality, as they are two sides of the same coin. [1: Chroust, Anton-Hermann and David L. Osborn, ‘Aristotle's Conception of Justice’ (1942) 17(2) Notre Dame Law Review 129, 129-130. ]
Various civil and criminal cases have demonstrated that law and justice are one and the same thing. The law was enacted, or the case was decided by applying the principles of justice. In Commercial Bank of Australia v Amadio[footnoteRef:2] case, where the parents acted as guarantor of son for a loan from a bank and where the son defaulted in the payment of the amount, the parents faced eviction from their house. The court held that in considering the contract, it must analysed whether due to personal circumstances, the parents were under a special disability at the time of entering in the contract and it must be determined that the contract of guarantee must be ‘just, fair and reasonable’. [2: Commercial Bank of Australia v Amadio (1983) 151 CLR 447.]
Similarly, the equal pay protest by women which started in 1960s, whereby women protested by paying two-third price of train ticket which is equivalent to their pay, that is two-third of men. It led to the development of equality of opportunity.[footnoteRef:3] [3: The Workplace Gender Equality Act 2012 (Cth) replaced the Equal Opportunity for Women in the Workplace Act 1999 (Cth).]
In the Mabo[footnoteRef:4] case, the court identified the land rights of indigenous people by applying the principles of fairness and equity. [4: Mabo v Queensland (No.2) (1992) 175 CLR 1.]
2. Issue
Whether there was contract between Pedro and Andres, the concept of offer, acceptance, invitation to treat, counter-offer, consideration revocation of offer.
Rule
A valid contract is an agreement which consists of offer and acceptance and meeting of minds between the parties.[footnoteRef:5] An offer is a communication by one person to another of his willingness to do or not to do something in return for another person doing or refraining from doing something. Once accepted, the offeror is bound by the contract. It could be made to an individual, group or the public at large.[footnoteRef:6] An acceptance must be in response to the offer.[footnoteRef:7] Acceptance must exactly correspond to the offer, if not it results in counter-offer. [5: Smith v Hughes [1871] LR 6 QB 597.] [6: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.] [7: Crown v Clarke (1927) 40 CLR 227.]
If the intention of the party is not to be bound by a contract, then it is not an offer but an invitation to treat.[footnoteRef:8] Goods advertised in store or displayed are invitation to treat.[footnoteRef:9] [8: Pharmaceutical Society of Great Britain v Boots [1953] 1 QB 401.] [9: Fisher v Bell [1960] 3 All ER 731.]
In Dickinson v Dodds[footnoteRef:10], wherein a party was given time to accept the offer, and meanwhile the offeror sold the good to a third party. It was held that since no consideration was passed between the parties or no amount was given to keep the offer open, there was no binding contract created between the parties. On the other hand, in Goldsborough Mort & Co Ltd v Quinn[footnoteRef:11], since Quinn was given 50c to keep the offer open but he sold it to another buyer, was held laible for breach of contract. [10: Dickinson v Dodds (1875) 2 Ch D 463.
] [11: Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674.]
Application
Display of speedboat amounts to invitation to treat. Pedro’s call to buy boat for $7000 amounts to offer. Since, Andres did not accept the offer exactly, his proposal to sell the boat for $8000 amounts to counter-offer.
Since no consideration is passed between Pedro and Andres, he was not liable to keep the offer open for Pedro. Seeing that the boat was gone and hearing from someone else results in revocation of offer.
Conclusion
There was no valid contract between Pedro and Andres as the good was sold to another person before acceptance by Pedro.
3. Issue
The case involves duress, unconscionability and undue influence.
Rule
The principle of Australian jurisprudence aims at protecting the weak from exploitation.[footnoteRef:12] Duress means lack of free consent and when one party exerts pressure on the weaker party to enter in to...