the paper is almost done I just need to answer this part from the 2 examples on the paper, Can law be allowed to tilt in favour of one party. please cite and reference Harvard style. preferably 200 to 300 words.Introduction:
Laws are an essential part of a well-functioning society. It helps to minimise chaos and
disorder, resolve disputes and if applicable, punish perpetuators. In commercial dealings,
Contract Law helps to regulate, facilitate, and adjudicate day-to-day commercial dealings of
persons. This paper will explore whether parties should be left unrestrained to draft its own
provisions to a contract. It will discuss whether law can be allowed to tilt in favour of one party
and give examples of when this has already occurred. Additionally, it will examine whether
the Australian Contract Law adopt the concept of “fair-dealing”. Finally, it will address the
issue of whether law can be a humanitarian instrument.
Should parties be left unrestrained drafting its provisions?
The rudimentary principle of the Australian Contract Law is the freedom of contract.
Freedom of contract simply means that a person have the freedom to select who they wish to
form a contract with and draft the terms pertaining to the said contract (Weber, 2013). However,
that freedom comes with restrictions in order to protect a party that is in disadvantage before,
during, or after the contract is formed. These restrictions are present in order to avoid damages
and injustice that is or ought to be caused by a contract. There are various individuals and
entities that are prohibited by the Australian Law to enter into a valid legal contract. They do
not have the capacity to contract meaning they do not have the ability to enter into legal
relationships, cannot exercise legal rights, and cannot be held liable for breach of contract.
They are: Minors, Drunkards, Mentally Incapacitated, and Bankrupts (Ciro & Goldwasser &
Verma, 2014). These individual entities are prevented by the law because they are vulnerable
to the risk of being taken advantage of. The law believes that they are not in the right mental
state or have the sufficient ability to fully understand the terms of the contract they are entering.
Parties are generally left to draft their own contract provisions under the principle of freedom
of contract. However, there are people who are at risk of being put into a disadvantaged
position. A disadvantaged position is defined as a position wherein there is unilateral
bargaining power, unilateral contract preparation, ‘Take it or Leave it’ terms, no opportunity
to negotiate, and negotiation only for reflecting circumstances (Christensen & Butler & Dixon,
2012). In line to this, it is important to note that there are various considerations in each single
contract. It is thus necessary to put some flexibility in how the specific parties draft their own
provisions. The Australian Consumer Law is in-charge of regulating these contracts so that
parties are given the freedom to draft the provisions provided that these provisions are fair and
do not put one party at a disadvantaged position.
Australian Contract Law…Fair-dealing
Good faith is in essence “a principle of fair open dealing” (Thomas, 2012) wherein
parties should act honestly, reasonably and fairly in dealings. When parties are negotiating,
performing and resolving disputes, good faith ‘imposes a general standard of fair dealing’
between them (Naris & Thomas, 2015). Despite good faith being possibly the most broadly
prescribed standard of conduct internationally for contracting parties, there is an absence of a
doctrine of good faith in the Australian contract law (Dixon, 2011). However, its basic
principles are long recognised as implicit in existing Australian law unlike in many civil law
systems where this concept is explicitly recognised. Australia makes up for the absence of a
general good faith doctrine by various means. For example, the concept of ‘unconscionable
conduct’ under the Australian Consumer Law states that businesses must not engage in conduct
that goes against good conscience when dealing with other businesses or their customers (Ciro
& Goldwasser & Verma, 2014). Thomas (2012), argues that this implied that businesses must
act in good faith in accordance with fair dealing. Priestley JA, in light of the landmark
judgement on the case of Renard Constructions Pty Ltd v Minister of Public Works brought
forward the notion that there should be a recognition of a ‘duty of good faith and fair dealing
in contractual performance’ (Naris & Thomas, 2015). Following the case, there have been an
increasing number of occasions where decisions were made after taking into account good faith
and fair dealing within Australian contract law. However, each of the Australian states’ stance
on the concept of good faith varies. For the most part, New South Wales and South Australia
have accepted the existence of a duty of good faith. Contrariwise, Victoria, Tasmania, and the
Australian Capital Territory have rejected and opted for traditional principles instead. While
Western Australia, Northern Territory, and Queensland have not specified their stance on the
matter (Allsop, 2015). The lack of unity between the states are still present because the High
Court of Australia has declined to say something about the matter of good faith. The Australian
contract law do practice the concept of fair-dealing but they do it in such a way that the concept
is implied in existing laws rather than specifically stated as a law itself.
Can law be a humanitarian instrument?
The law of contract is not just a group of rules but rather a ‘living area in law’ which
people practise on a daily basis (Mulcahy L 2008). According to Ciro, Goldwasser, and Verma
(2014), the main purpose of law is to ‘provide social cohesion by avoiding conflicts that may
occur in a society’, which is already proof enough for law being a humanitarian instrument.
Law may also prove to be a humanitarian instrument in other aspects such as in contractual
relations. An example of this is shown in a contract between persons because ‘a means of
supporting the process of the exchange of goods and services is needed in society’s economic
order’ (Mulcahy L 2008). These purposes show that without law, there would be chaos,
confusion, and unconscionable conduct in society. Law provides stability, certainty, and
predictability to a society by maintaining its authority as binding to a community (Ciro,
Goldwasser & Verma 2014). Deriving from those purposes, law is concerned with the welfare
of society in terms of maintaining peace and order, as well as in contracts people enter into
almost daily. Another example showing law as a humanitarian instrument is in its giving justice
to innocent parties in disputes. Law regulates unfair contract terms to protect the interests of
parties entering into contracts from unconscionable conduct and being disadvantaged.
Can law be allowed to tilt in favour of one party?
It is possible for the law to tilt in favour of one party in a contract such as the
disadvantaged due to several reasons. One of these reasons include the damages suffered by
the weaker party because of a special disability known by the stronger party. This is considered
Case law examples in which it is illustrated that law could yield favour to one of the
contracting parties include the cases of Softley v Metricon Homes Pty Ltd and TCL Air
Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia (2013) HCA
5 (13 March 2013).
The example case study is about the Metricon Homes Company which published
advertisements through brochures of various designs for houses which visitors would spend
their time. However, the brochures contained prices of items and conditions offered for each
service. It is evident that upon acceptance of the contracts, some of the customers found that
the services that were advertised by the customers were not provided by the management of
The warranty also contained false or misleading representations. This is because they
clearly stated that every service that was not offered would be repaid back to the customers.
However, the management of Metricon did not provide good specifications as to when the
customers or the clients would be compensated. This meant that upon receiving the claims, the
management would take its time to access the service that was not offered and then consider
whether it would provide compensation for the services. However, it is evident that most of the
contents of the advertisement were attracting the consumers. Nonetheless, many clients in the
company did not carefully read the warranties and this led to the lack of identification of the
representations as contained in the brochures.
The main purpose of Metricon Home brochures was to draw the customers to the
holiday homes provided by the company. The main reason for this was to entice many clients
as possible thus increases the profitability of the company. It is obvious the types of services
provided by the hotel did not match up those found in the brochure advertisements. Most of
the statements contained in the brochure were false and did not provide impressions as created
to the customers. This can even lead to the contract becoming void since the conditions and
terms of the offer are not truthful and fair to one party (Healey, D., 2009). The true facts were
that the management of the hotel wanted to allure the visitors to believe that the services offered
in the hotel were excellent, which was not the case. Deception into contracts leads to one party
taking advantage over the other party.
Since the customers did not receive the services they had paid for, it is evident that
this was a form of bait advertisement to the consumers. The company had also deceived the
consumers about the price lists of the houses, which would be used as accommodation for
holiday seekers. The company had clearly stated in the brochures that they had upgraded their
services with specific characteristics. Different fittings of the houses were also provided by the
management thus providing a variety of fittings that would be used by the clients (Beale, H.
G., Bishop, W. D., & Furmston, M. P., 2008).
The advertisement brochures from Metricon Homes Old Company have many legal
issues. It is advisable for the company to correct the misrepresentations or face legal action.
According to consumer protection laws, customers of the company should avoid the contracts
until all misrepresentations have been corrected. The company has the responsibility of
compensating its clients on the damages for nonperformance. Since misrepresentation occurs
with a false innocent statement, which does not have the intention to deceive, the management
of the company should rewrite the brochures by including all the information.
In order to reduce the chances of the contract becoming voidable, it is advisable for the
management of Metricon to correct all raising legal issues. This can be done through correction
of the advertisements through the brochures thus validating the contracts. This can be done
through correction of the advertisements through the brochures thus validating the contracts.
The lack of certain statements in the contracts can lead to it being termed as null and void by
one party. Under the contractual law, void contracts are not legal and cannot be accepted by
either party. Therefore, it is mandatory for Metricon Company to include all the missing
statements in the contracts thus making them as valid (Radan, P., & Gooley, J., 2009).
Another case is the TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the
Federal Court of Australia (2013) HCA 5 (13 March 2013) was rejected because of expenses
by the high court of Australia. For this situation, the Australian high court in a consistent choice
maintained the legitimacy of Australian sacred International laws of Arbitration. The judges in
their choice watched that the high court does not have any privilege to audit any recompense
for any mistake of jurisdictional law. The case was critical to the Australian powers since they
can’t authorize any discretion grants in Australia and its abroad partners.
The fundamental point of achieving the choice of the case was to elevate Australia to
end up a focal point of global assertions for fare any lawfully related administration. The
certainties of the case were as per the following. Rank Electronics Pty Ltd and TCL Air
conditioner were included in a contention. A condition in their legally binding assertion
expressed that they could fathom their contentions through a legal mediation in Australia.
When a dispute arose between the two companies, the high court issued arbitration in favor of
Castel (Alvarez, H. C., Kaplan, N., & Rivkin, D. W., 2003).
One of the issues that emerged in the middle of the two organizations is that TCL was
against any issue of an honor for discretion process. In its application, TCL had watched that
the judges of the government court did not have any purview for issuing of any global assertion
recompense. One of the characterizing attributes for this situation is that TCL had asserted that
the high court had honored them for a blunder in jurisdictional law. In documenting the case,
TCL Air Conditioner (Zhongshan) Co constrained tried to maintain a strategic distance from
the requirement of a recompense for intervention against the organization.
The organization, in its application, contended that a few areas of the International
Arbitration Act of 1974 were not adequately taken after henceforth putting forth the defense to
be invalid. TCL Company needed the Australian high court to issue a protected write that
would keep the judges from upholding the government court from making any requests that
would permit requirement of the grant. TCL had seen, in its application that significant
procurements of the Act were contrary to the constitution henceforth keeping the influence of
the republic to be elite from that of legal force of the courts (Binder, P., 2004).
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