BULAW 1502 ASSIGNMENT SEM 1 2014 Essay Example
7BULAW 1502 ASSIGNMENT SEM 1 2014
BULAW 1502 ASSIGNMENT SEM 1 2014
BULAW 1502 ASSIGNMENT SEM 1 2014
What are Buyer’s potential claims against Seller?
Schwartz & Scott (2001) suggest that; the buyer can claim that the seller breached the sale agreement, which caused him several damages. Similarly, the buyer can file a case on fraudulent practice of the seller. In theagreement to sell a van, the seller agreed to the contract. The buyer committed to the purchase of the van by accepting the terms of the seller, which was through mailing the seller a cheque of $5,000. The other amount as per the condition of the seller was to pay the remainder by 1st November. The buyer adhered to these terms, and is, therefore, supposed to get the van. This is termed as the express terms of sale in the contract.
The refusal of the seller to release the van on the 25th of October means that he has breached the contract. The breach has caused the buyer significant damages in terms of money and time(Fišer-Šobot, 2013). The buyer attained a loan of $20,000 to complete the purchase. Similarly, the buyer depends, on the van to, start off his business, and he had already spent $1200 on business cards, cellular phone, and flyers. Additionally, the buyer had projected a profit of approximately $50,000 by the end of the year.
The deposit is a powerful weapon in store of the seller. Similarly, the buyer can be powerful if he does not require a deposit. The seller insisted that; the buyer should make a deposit of $5,000if; he is really interested in the purchase of the van. A deposit is required to be approximately 10% of the selling price(Fišer-Šobot, 2013).However, the buyer and the vendor can negotiateon the cost provided, it remains at a maximum of the 10% requirement. In this case, the seller quoted the price, which was adhered to by the buyer at $5,000 cheque deposit. The deposit needs to be sufficient to, assist the seller to incur the expenses accompanying the sale.
What are Seller’s potential defenses?
Contrarily, the seller can claim that; there is an increase market value of the sale (Schwartz & Scott 2001). An increase in the market price makes the seller sell the van at a higher price as the initial price might injure his sale intentions. Similarly, the seller can argue that; the sales contract allows him to have an unconditional right to cancel the claim. This infers that the buyer is not liable for specific performance. Additionally, the seller can quote the Statute of Fraud in his defense. The law on Statute of Fraud is a device used when an individual breaches a lawsuit contract. The laws require that contracts involving more than $500 be in writing.
Schwartz & Scott (2001) asserts that; failure to meet the requirement makes it difficult for the court to enforce the lawsuit. The aim of the law is to eliminate any possibility of fraud or perjury, by quoting non-existence of the contract. The objective is to ensure the availability of the memorandum of contract, or a written note, which is signed by the people, bound by the contract when conflicts arise. Additionally, the seller can claim that the contract, which the buyer is claiming to be part of, cannot be enforced by the law. This infers that; the contract has not met the statute requirements. Hence, the offender is released on the breach. Hence, buyer cannot recover the $5,000 deposit, and the van.
The contract to the sale needs to have been signed by the buyer and the seller. The absence of the contract in writing implies that; the promise was never made and guaranteed. The quality of the good, which needs to be sold, was never indicated, which raises the possibility of counter-contract, which might similarly apply as; the buyer had not inspected the van. The claims of the seller are designed to declare the contract null and void (Fišer-Šobot, 2013).
Who is likely to prevail in the event this case goes to court?
The buyer is likely to prevail when the case goes to court. This is because he can citethe Fraud statute exemptions, which clearly applies in the buyers’ situation. The court might consider the contract as unconscionable. The seller, who is considered to be the person with a higher bargaining position dictate terms, which are grossly oppressing to the buyer. This infers that the court, in the process of determining the unconscionable nature of the issue might notice that the seller is being unfair to the buyer. This is because the seller is not a merchant, and was only disposing the courier van, which was in service (Fišer-Šobot, 2013).
The parties to this contract had not included all the terms required in the sale agreement. This infers that; the changes might be made at a later date. However, from the behavior depicted by the seller, the buyer needs to exercise caution in future in case, he wishes to transact any amount more than $500 (Schwartz & Scott, 2001).The statute if applied in this case can result into unjust actions. The buyer released $5,000 in Good Faith, and believes that the contract exists. Buyer goes to the extent of spending money and time to ensure the completion of the agreement. However, the seller is unable to make the buyer adhere to the agreement because there was no writing in the contract.
In such a case, the court can apply the part performance to know if the conduct presented by the plaintiff, is based on the belief that;contract exists. If they found justification to the existence of the contract, the law might be enforced even in theabsence of the required writing (Fišer-Šobot, 2013). The buyer can use part performance to make the seller liable for the duties imposed by the contract terms. The actions of the plaintiff need to be considerable to show that; he had immense reliance to the contract terms.
The court can cite specific performancebecause the seller is able but reluctant to complete the sale agreement requirement. The buyer, who is the claimant in the contract breach, is willing to complete the transaction, and take the van, rather than attain the compensation for the damage. Specific performance is normally undertaken by the court, under own discretion as, opposed to the right of an individual. The agreement needs to be equivocal and definite for the court to apply the specific performance. Specific performance is used to ensure that; the parties do not return to the positions, which they were previously exposed (Kokoruda, 2011).
In support of the specific performance, the buyer can show the court that he was ready to pay and close the contract. The buyer has a valid reason for specific performance because the contract intended to close when the buyer pays the amount before the 1st of November, which he did. The buyer had attained the required amount by the 25th of October, which was 5 days earlier to the expiry of the contract. The obligations of the parties are reflected when the buyer deposited $5,000 cheque to the seller as proposed by the seller. This infers that; the seller needed to reciprocate the act in good will, which he fails (Fišer-Šobot, 2013). The eligibility of the buyer to meeting the conditions of sale infers that; the buyer needs to receive the specific performance from the court.
Assume Buyer prevails in his lawsuit against Seller. What damages is Buyer likely to receive from the court?
If the buyer succeeds in the case against the seller, the court might offer him the specific performance, which requires the seller to complete the sale contract they agreed upon. This is more likely; as the buyer is determined to start a business, to enable him pay the loan, which he owes the investor (Schwartz & Scott, 2001). The understanding that; the seller is on the wrong by refusing to close the contract, which requires him to release the van to the buyer, makes the buyer accessible to three remedies, which are basic. Firstly, the seller is required to pay money damages incurred to the buyer for breaching the contract. Secondly, the seller can opt to terminate the contract and release the deposit to the buyer. If the seller refuses to release the van for sale to the buyer, he is required by the court, to pay the expenses incurred by the buyer, which include the cost of repaying the $20,000 loan, the expense of buying the business equipment, which amounted to $1200, and the projected profit of $50,000 expected at the end of the year.
The buyer has remedy for the wrongful refusal of the seller to release the van. The claim is that; the seller has default the agreement and is fraudulent to the contract. The seller refused to release the van to the buyer, who had made a commitment to purchase a van, by sticking to the contract of purchase (Fišer-Šobot, 2013). By stating that,there is another buyer, who had quoted a higher price by $15,000 the seller is dishonoring the contract. The seller is unlikely to escape the duty to honor the sale contract because the state law has provisions on the clean-up costs on the seller.
Fišer-Šobot, S. (2013). Exemption of the Seller under Art. 80 of the UN Convention on Contracts for the International Sale of Goods. (English). Proceedings Of Novi Sad Faculty Of Law, 47(2), 449-460. doi:10.5937/zrpfns47-4476
Kokoruda, C. C. (2011). The UN Convention on Contracts for the International Sale of Goods — It’s Not Your Father’s Uniform Commercial Code. Florida Bar Journal, 85(6), 103-105.
Schwartz, A., & Scott, R. E. (2001). Sales law and the contracting process. Westbury, N.Y: Foundation Press.
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