Adam And Eve Assignment Help
Adam wants to sell the flower shop. He proposes to Eve for the purchase of the flower shop. Eve therein inquires of the annual billings of the shop in order to take over the business. Adam expresses that the flower shop earns around $ 600,000 around the year. Thereby, not disclosing the fact that, the shop does not earn as much during the off-season. The reduction in the profits is of $ 60,000. The actual profit so earned by the shop is that of $ 540,000. It is observed that the shop does not earn equal profit around the year. However, the contract was entered into by Eve on the mere expression of the fact that the shop earned $ 600,000. Thereby, the statement would be termed as collateral in the present case. However, there was no collateral contract it acts as an inducement factor for Eve to enter into a contract thereby terming it as collateral. Eve however determined that soon enough after the purchase that the shop does not earn as much to keep up with the regular expenses and hence considers is a loss. [Ciro&Symes(2013)]
a. Advise Eve of her rights, if any against Adam and any remedies available for her under the common law.
For a contract to be valid, the essential elements are required to be present. An offer is considered to be a statement of facts made by the offeror. The offeree if agrees to the terms of the contract, it would be considered as an acceptance. The same contract has to be entered into by two parties for a certain consideration amount that is not of past, moves from a promise, is sufficient and not arising from a pre existing duty. The parties entering into a contract have a common intention and be of capacity. Capacity of the party is determined because they are majority of age, of sound mind and sound financial status. Thereby, the contract so entered into by the parties under the present scenario is that of valid nature. This is because the contract is entered into by two parties for the trade of flower shop for a price of $ 600,000. The offer was made by Adam and thereby accepted by Eve in turn to ensure that the exchange mechanism has been constructed. A counter offer has not been made whereby the terms were negotiated the contract was accepted as presented. As the contract was for business purposes, it would be a commercial contract that is bound by the laws. [Sweeney and O’ Reily& Coleman (2013)]
The terms were made clear during the process of the purchase of the flower shop whereby the sale of flower shop for a certain amount of profits was an express terms. The true nature of the receipts was an implied term. The purchase of the flower shop was a condition and the receipts so presented was a warranty. A Misrepresentation is a statement made at the time of entering into a contract by the party to mislead another party to enter into a contract that is known to be false by the person making the statement. Therefore, the present case would be the case of misrepresentation. As a buyer, Eve would have the right to buyer remedies for the misrepresentation so taken place in the current situation. The remedies that may be claimed by the parties are that of rescinding the contract or refunding the amount so paid by Eve at the time of making the purchase. The breach so taking place is for the breach of warranty thereby the damages may also be claimed. [Corones(2011)]
b. Would your advice be different if Eve has asked Adam the exact turnover of the business?
If the case had been whereby the Eve had asked for the exact turnover under the present scenario, then the advice would have been different. This is because, as Eve had known the actual turnover of the flower shop. She would have been able to make an informed decision making whether to undergo the purchase of the flower shop or not. However, it also depends on the answer presented by Adam in the given circumstances. If Adam had continued to misrepresent then Eve would have been able to claim the remedies so presented previously. If Adam had presented the actual turnover then this would have given Eve the opportunity to change the decision. It would mean that misrepresentation is termed to be so if the original status is known by the person making the statement and is still kept hidden. A misrepresentation would amount to be that of a term if, when made, is directly related to the buyer’s action of acceptance. If the false statement when made were not resultant of the acceptance then it would not amount as a term but a mere representation. Therefore, the advice to Eve would change on the circumstances so presented above. [Harris (2013)]
Case Study 2:
It is presented that the two parties had entered into a contract for the supply of flowers through the means of post. One party is a supplier of the flowers and the party purchasing the flowers is a flower shop that delivers flowers in return. Every Monday the flower selling shop posts a letter ordering for the flowers, which is then delivered, to the supplier on Tuesday. The supplier then replies on Tuesday and it gets delivered on Wednesday. The flowers are then delivered on Thursday. One such week, the flower shop owner ordered the flowers and posted the letter on Monday. The letter is delivered and received duly. The reply by the supplier is then posted by Tuesday but is not delivered on Wednesday because of the post office strike. The flower shop then had to make an emergency order for the delivery of the flowers from another supplier as no confirmation was received by it. As the supplier was unaware of the fact it went on to deliver the same. The flower shop then refuses to accept the order in the given circumstance. The supplier wants to bring a claim against the said party. [Santucci(2011)]
a. Advise Robert of his options using case law
It may be determined that he case so presented is concerning the issue of acceptance by postal rule. According to the postal rule it is determined that the acceptance should be made as soon as the same is posted by the offeree. It is to be determined that the communication is an acceptable means of communication in the given circumstances. As the parties were already engaged in the communication made through post, the acceptance through post would be considered as n acceptable means. However, the parties were unaware of the strike and this resulted in a miscommunication. It was however, determined that the flower shop owner was under the impression that on non-receipt of the acceptance that the supplier might have been busy elsewhere as it had mentioned regarding another order that was huge. This gave the owner reason enough to consider that the order has not been accepted. Under the case ofTalleman& Co. Pty Ltd v Nathan’s Merchandise, 1957 it was discussed that if the party ahs the reason enough to contemplate the reasons for entering into a contract the contract would not exist. [Corones(2011)]
b. Would your advice be the same if Robert’s mail, instead of confirming the Brian’s order, advised Brian that he is only able to fulfill half of Brian’s order and delivered, only half of what Brian ordered? Support your answer using case law.
According to the rules of offer, if a offer when directly made and accepted is said to be the basis of the contract. Everything considering the contract could be analysed through the terms so illustrated under the offer. If the offer is altered, in any case the original offer ceases to exist. The new offer so made from the original offer is considered to be a counter offer. Under the given circumstance thereby, if the supplier would have posted a letter stating that only half the order would be supplied thereby it would be a counter offer that requires acceptance. If the order for half the flowers is then delivered to the flower shop the owner of the flower shop would not be bound to accept the offer as the same has not been accepted through post or any other means of communication. Thereby, no contract would have been formed not giving rise to any liabilities for the non-payment of the same. [Ciro&Symes(2013)]
Accordingly, whereby the letter was posted, the flower shop owner would have contemplated an acceptance but not a counter offer as from the previous course of dealings the parties have only made the simple offer and acceptance letters to each other. Whereby, a letter for limiting the offer to alter the order to half the supply, it could not have been assumed by the party making the offer thereby, not giving it reason enough for making the supply of the same. As no contract was entered into, no claim could be made for the delivery of half the order or supplies as held under the case of Bressan v Squires, 1974.[Harris (2013)]
- Ciro T &Symes C (2013), Corporations Law in Principle, Lawbook Co.
- Sweeney, B, O’ Reily, J & Coleman, A (2013), Law in Commerce, NSW LexisNexis Buttersworth
- Corones, S. (2011). The Australian consumer law. Rozelle, N.S.W.: Thomson Reuters (Professional) Australia. Order Now