4 BUS503 Principles of Commercial Law Assignment Sample
Here’s the best sample of 4 BUS503 Principles of Commercial Law Assignment, written by the expert.
Contract Project University of Sunshine Coast
Case Facts
Plaintiff: University of Sunshine Coast via Rafia
Defendant(s): Shastriya Nritya & Kalpana
In the matter of Indian cultural dance performance by Defendant at a cultural event conducted by Plaintiff.
Facts:
- The University of Sunshine Coast had organized a cultural event with specially focused theme of Indian cultural dance
- The Indian cultural dance performance was the main showcase of the event and the event was presented as such.
- Plaintiff by legal contract had employed the services of the defendant for this focal showpiece performance
- The event assumed importance for the plaintiff that it would have culminated in considerable gains for the plaintiff.
- The cultural dance performance was not executed as agreed upon via oral performance guarantees by the defendant of being an expert performer for the said requisition by the plaintiff citing their origin of birth and being proficiently trained in said performance arts.
- The plaintiff had issued tickets thereby entering into a further liability with patrons of the show to deliver an Indian cultural dance performance as was advertised by the plaintiff.
- The plaintiff had made the defendant aware that the patrons of the show will be visiting Indian delegation which was a clear indication that the performance will be received by patrons of similar origin to the defendant.
- Such patrons of the show were not affiliated with the plaintiff and hence were free of any prejudice in their observation.
Is the oral assurance given by Kalpana to Rafia a term of contract or not?
We can examine this as per the information available in the case information earlier. The existence of a contract is subject to satisfaction of certain conditions the fulfillment of which will construe the existence of an agreement between Kalpana and Rafia. (Fortune Law, 2018)
The parties have agreed upon a specific performance as part of a cultural event and it has been established that this performance will be the focal presentation of the entire event.
There is no discrepancy in the identification and exclusive allocation of the segregated segment of the event to the defendant for their performance and the residual performances of the event cannot be attributed to being in the completion of this segmented performance in any manner possible.
Contract Formation:
The plaintiff and defendant have fulfilled the conditions to prove the existence of a contract in certain terms. The parties have shown that the offeror had sought out the offeree for fulfilling specific requisition which the offeror has expressly stated to the offeree.
The plaintiff has carried out due research and then by means of electronic search selected the defendant’s firm Shastriya Nritya upon carefully examining their website content. The content present on Shastriya Nritya website has also amply indicated via pictures and text that they are an agency of Indian cultural dance performers. The pictures are so depicted to help any user arrive at a definitive conclusion as to the nature of services on offer.
The website by extension is also a form of advertising and thereby is construed to be a legal expression of the claim about goods or services offered by the business. As per the Australian Competitor and Consumer Commission: “A misrepresentation is a claim or statement that is false or misleading made by one party to another.” This includes claims or statements that you make in television or radio advertisements, in catalogs, on labels, on websites, in contracts (or during contract negotiations), over the telephone, in correspondence (such as letters or emails) or in person. (Australian Competition and Consumer Commission, 2018)
The plaintiff has exercised judgment in lieu of such promotional communication by the defendant and then selected them for the main event at the cultural program.
The plaintiff and the defendant have thus discussed and achieved a consensus of the mind about what is the material property which will be transacted between them for a consideration. The material property established here is “ Indian Cultural Dance “ and further defined and specified to ample clarity by the plaintiff to be as referenced on various avenues of Electronic video search; one of the major ones being YouTube.
The plaintiff had qualified the material property by providing a clear reference on a public platform as to the quality and nature of this property which is expected from the defendant. The terms used by plaintiff clearly specified “traditional, classical Indian dance as seen on YouTube “.
This placed upon the defendant the responsibility and extended them a fair opportunity to exercise judicious caution if so required and only proceed with the contract having understood what was expected. The defendant at this stage has chosen to imply their command over the property and agreed that they fulfill the requirements as discussed completely.
Post this establishment of terms and consensual meeting of minds the parties have arrived at a “consideration”. The defendant has agreed to a consideration without any ambiguity about the purpose for which this consideration is being extended by the plaintiff to them. The consideration is present in written form and affirmed upon without any side contracts by the seal and signature of the defendant. The defendant has not made any mention of the quantum or adequacy of the consideration as well.
The defendant thus did not express any reservations towards being bound in a legally binding relationship with the plaintiff and did not choose to bring forth any such qualifications to the service so promised while putting their seal and signature on the written contract.
The plaintiff has thus in good faith in the ability and proficiency as well as allowing due consideration to the defendant for services rendered proceeded to confirm this verbal contract via a written contract. The defendant has however failed to provide the correct nature of services so demanded by the plaintiff and agreed upon.
Thereby, the critical elements of the constitution for a contract to exist between the plaintiff and the defendant have been satisfied.
- The identification of the material property to be transacted
- Meeting of minds via referenced, specified expectations of performance
- Offer by the Plaintiff and Acceptance of offer by the Defendant.
- Presence of written contract
- Agreed upon consideration for the material property so transacted.
These events and actions between the plaintiff and the defendant so establish that the oral assurance extended by Kalpana to Rafia constituted the formation of an Oral contract and thus extends possible remedies to the plaintiff to seek compensation for damages so incurred from financial as well as reputation standpoint.
If the oral assurance can be regarded as a term, is a court likely to regard it a condition or warranty?
It has been established that the oral assurance given by the defendant to the plaintiff is of the nature of a contract.
We can further examine and establish cause about whether it constitutes to be treated as a condition or a warranty by understanding the actions of the defendant during the oral contract as well as post the execution of the written contract. (Lawteacher.net, 2018)
The defendant via their website had already declared to the plaintiff their expertise in the conduct of the said Indian cultural dance via pictures and other text present on the website. Upon an oral discussion with the plaintiff, the defendant had impressed upon the plaintiff their ability to deliver the said material property to the complete satisfaction of the plaintiff by:
- Quoting their origin of birth as India: The defendant clearly implied that being born in India she has imbibed all the necessary cultural milieu and can be regarded as a subject matter expert carrying an understanding of the traditions followed in the performance of Indian cultural traditional dance.
- Quoted the origin of training in Indian cultural dance as India: This was done by the defendant to clearly establish in the mind of the plaintiff that apart from being born on India; the actual training required for this performance has also been obtained at a source of origin; which is India. The plaintiff has by common logic deduced that the best location of training of Indian Traditional Cultural dance has to be its point of origin: India. Thereby the defendant projected themselves as the best qualified to clear any quality checkpoints that the plaintiff had established to their decision making in selecting the most qualified service provider for the performance at hand.
- Declaration of technical superiority: The defendant has specifically impressed upon the plaintiff that they are the only ones who can deliver the “most beautiful” performance of dance which is Indian. The defendant has exhorted that their performance is much better and technically superior to other such performers of this dance. The defendant has also chosen to not specify any geographical limitation to such a declaration.
- Guarantee: The defendant has expressed clear and unqualified usage of the word “Guarantee” to impress upon the plaintiff that they stand by their word and thus allowed the plaintiff to conclude that the intent so displayed by the defendant is firm and backed by technical as well as source of origin facts which further add weight to their guarantee of performance. (Lawteacher.net, 2018)
It has been thus established that the defendant by embellishing the facts made a total of 4 clear and precise claims to the plaintiff to establish their competency for offering the material property.
These 4 claims made by the defendant to the plaintiff can be construed as condition and warranty as these were exercised to qualify the defendant for main performance of the cultural event. These claims were pivotal in convincing the plaintiff that the defendant will deliver an exceptional and impressive performance for the patrons of the show.
The Show Patrons
We have to also consider that that defendant was made aware in no uncertain terms that the patrons of the show will mostly be comprised of the visiting dignitaries of an Indian institution from India. Thereby their competency to grasp Indian cultural dance or Indian traditional dance forms will also be impartial and free of prejudice. The patrons having originated from the same country as the defendant can be considered as having been exposed to this dance performance and hence their judgment can be regarded as fairly accurate in gauging the format of a dance performance on display.
The defendant had also been made aware by the plaintiff of the need to deliver a culturally appropriate and genuine dance performance for the visiting Indian dignitaries. However, when asked for a feedback the Indian dignitaries did not lend a seal of approval to the performance to be categorized as an “Indian cultural dance “performance and instead clearly identified the performance as a Bollywood dance performance. They used the term Bollywood to refer to the dances carried out in the film industry of India which does not resemble the traditional Indian dance at all.
The Indian patrons also were at a loss to identify the dancers by their competency as being remotely connected to the Indian cultural dance form. They were clearly tagged as “too romanticized and lacking devotion to dance”.
This has established that the defendant has failed to deliver the agreed upon the material property from the viewpoint of the plaintiff and also an independent entity with no commercial interest or otherwise in the conduct of the cultural event.
This stands in sharp contrast to the exhortations of the defendant via the 4 claims as made by them on the plaintiff to deliver an exceptionally beautiful dance experience for the show’s patrons. Thereby it can be concluded that the defendant extended a clear and sound warranty to the plaintiff as it was clear that this was a condition contingent to which they will obtain the said contract for a consideration.
The court should consider these and the other facts to constitute as a warranty the actions of the defendant due to which the plaintiff was led to believe they have completed due diligence and selected the most qualified service provider. The court should also consider that the absence of these 4 claims as above would have motivated the plaintiff to source and interview some more service providers before making a decision to formalize a contract with the defendant in good faith and with adequate consideration for their efforts.
What remedies are open to USC given the facts?
The USC has executed a contract with Shastriya Nritya for the main performance at the cultural event on the basis of claims and warranties extended by the defendant.
The website and verbal contract along with the written contract had enabled the USC to proceed with firming up the conceptualization of the cultural event with the Indian cultural dance performance as the mainstay of the event. USC had further incurred costs in terms of promotion of the event, arrangements of the event, advertising, time and labor costs.
Thereby, we can clearly establish that the damages which USC can claim from the defendant have to fall into 2 categories:
- Monetary: The USC can seek under the common law all the costs associated with the formulation, setting up, execution, time and labor for the event and the promotional costs of the event via advertising in all mediums as print, visual, and electronic media.
The USC can also seek compensation for damages to reputation and morale in front of the visiting dignitaries of an Indian university who would have potentially granted the USC a health monetary opportunity for the future.
- Social: The plaintiff can seek and impose upon the defendant a censure to avoid advertising its services to public and institutions in the manner of an Indian cultural dance service provider and to withdraw from bidding on any further contracts it may have so acquired citing their acceptance and selection at a prestigious event as the one organized by the plaintiff.
The plaintiff can also impose upon the defendant the requirement of a written apology published in the leading newspapers of the region exonerating the plaintiff and its agents from having done any wrong to the patrons who bought tickets for the event. Such an unqualified apology will have to be tendered at the earliest as the plaintiff has already incurred a loss of reputation in front of prospects from a favorable geographical region.
The plaintiff, however, cannot claim consequential damages from the defendant for the contract which was about to be signed between the plaintiff and the visiting dignitaries as the defendant was not a party to that agreement even though having been aware of the same.
Also, the defendant did not stand to gain any performance bonus or consideration of any kind had the said contract or agreement been successfully executed between the plaintiff and the visiting Indian delegation. Thereby, through the actions of the defendant have colored the judgment of the delegation; the plaintiff was required to exercise more caution before executing the oral contract given the magnitude and importance of the cultural event to their operations and relationship with the visiting Indian delegation.
References
Fortune Law. (2018). Back To Basics – Terms Of A Contract – Fortune Law. [online] Available at: https://www.fortunelaw.com/back-to-basics-terms-of-a-contract/ [Accessed 12 May 2018].
Australian Competition and Consumer Commission. (2018). Advertising and selling guide – False or misleading claims. [online] Available at: https://www.accc.gov.au/publications/advertising-selling/advertising-and-selling-guide/avoid-misleading-or-deceptive-claims-or-conduct/false-or-misleading-claims [Accessed 12 May 2018].
Lawteacher.net. (2018). [online] Available at: https://www.lawteacher.net/PDF/contract-law/Terms%20Cases%201.pdf [Accessed 12 May 2018].
Lawteacher.net. (2018). The concept of collateral contract. [online] Available at: https://www.lawteacher.net/free-law-essays/contract-law/the-concept-of-collateral-contract-contract-law-essay.php [Accessed 12 May 2018].
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