COMMERCIAL LAW Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    2092

8COMMERCIAL LAW

Australian Commercial Law

Introduction

The law of tort refers to an act that is crooked or wrong, and for which the plaintiff can claim compensation from the offender for the civil wrong that was committed. Tort law seeks to avail justice for persons who experience a civil injustice form others in forms of their acts of omission to perform the required acts of them. The civil wrong comes about by his fail to perform the duties imposed on him with regard to the plaintiff by law. While some of the duties are laid down by specific legislations, others are enforced by common law and unlike a crime; a tort involves the compensation of the injured person or of the person who suffers loss out f the failure of the other person to perform his duties as required. This paper will analyze the case of Ellen to determine the issues raised by the facts as presented in the case, to identify the relevant legal principles in the case, to apply the relevant legal principles according to the facts of the case, and to reach a conclusion about the determination of the case by Ellen.

Issues Raised by the Facts

From the case of Ellen, a number of facts emerge with regard to her studio. The first issue is that Ellen takes all precautionary measures as required to ensure that the location she has selected for her studio is suitable. Before entering into a lease contract with the owner of the premises, she takes time to consult on the suitability of the premises form the concerned authorities. She dies this from the local council, which is responsible for such inquiries. When she is cleared by the council on the suitability of the premises, she goes ahead to make the contract with the owner. In her contract, she gets a 12 month lease for the premises, meaning that she cannot quit business in the premises until the 12 months are over. This means that if she has to quit the premises before the 12 months are over, she will have to compensate for the rest of the months that she will not be using the premises.

The other issue that is raised by the facts of the case is that the council clerk did not take his time to look into the suitability of the premises as carefully as he was required. Ellen made it clear to him that he wanted a location that was quiet and devoid of external distractions, which would provide a serene environment for her business. The clerk was required to look into the activities that were scheduled to take place in and around the area, which could make it unsuitable for her business. He was at a better position to be aware of these activities because all major activities, including those of construction in the town had to be reported to him. In this case, because the construction began two weeks after Ellen’s inquiries, he must have been aware of the plans. One possibility could be that he was not keen enough to locate the recorded plans in his register of activities, or that he ignored the event and intentionally failed to communicate it to Ellen.

Because of the council clerk’s actions, it is clear that Ellen suffered loss for her business as she would either have to stall her business activities for the six months that the construction work was going on, or relocate somewhere else that was more quiet and conducive for the activities of her meditation business. As such, she was liable for compensation from the council for their misinformation regarding the suitability of the location.

Relevant Legal Principles

The first principle present in the case is that of contract. Ellen is set to enter into a contract with the owner for the premises for the use of the premises for her business for a period of 12 months. Entering such a contract would bind both Ellen and the owner into the terms o the contract. This means that under the terms of the contract, Ellen would not leave the premises for the 12 months’ period a stated in the contract, and that she would have to pay the owner for the 12 months that she will use the premises. The owner, as well, would be obligated by the terms of the contract to preserve the premises for Ellen alone for the 12months’s period as stated in the contract. During this period, he would not allow any other customer to use the premises for any business other than Ellen1.

The second legal principle in the case is that of intentional interference with a person on the part of the council. This principle arises from the first incident that assumes that the clerk form the council was aware of the planned construction around the location of Ellen’s premises and went on to clear the premise as suitable for her planned business. This would then imply that while the council clerk knew that Ellen did not need any form of interference because of the nature of her business, he went ahead to allow for the construction activities, which would disturb her in her activities. Tortuous charges regarding the intentional interference with a person or his property involves the intent that is involved in the actions of the defendant, which constitute a civil wrong by the defendant as wrongfully committed by the offender, and are dealt with through a civil litigation to accord the injured party compensation for the loss incurred.

In defense for this offense, the defendant has the responsibility to find ways to excuse himself from the liability of his actions through the civil wrong. One way that the defendant can excuse himself from the liability of the case would be to show that he had the consent of the plaintiff in undertaking the activities he did, whether he had the permission of the plaintiff in his actions, or whether the plaintiff is defending himself in the activities undertaken. In the event that the courts establish that the defendant had the privilege for the activities he committed, then he will be cleared of any tortuous acts.

The third legal principle in the case is that of negligence on the part of the council employee. This would arise in the event that the employee did not take his time and proper effort to find out whether there were recorded planned construction activities in the location near Ellen’s premises. By the way that the employee was called before he could carefully scrutinize the business activities register and the quick clearance he gave to Ellen on resuming her duty with her, it could be possible that he missed out the plans as recorded. In order to proof that the employee acted in a manner that was negligent, certain elements would have to be required to proof this. There are specific codes of conducts that spell out the manner that people are supposed to act in their various capacities in order to reduce the amount of harm they pose to others in public. A plaintiff can only claim negligence on the part of the defendant if he is able to proof that his interests have been interfered with by the activities of the defendant. The plaintiff must, therefore, be in a position to proof his loss of injury and proof that they were caused directly or indirectly by the defendant in person or in his actions.

A negligence case must be tried in a court of law because of the difficult inherent in proofing the presence of negligence in the defendant’s actions. In such a case, the court appoints a jury to determine the case based on the proof present in the circumstances of the case. The jury must be sure beyond doubt that the defendant acted in a tortuous way and that through his actions, the plaintiff suffered some form of injury or loss in person or in his interests2.

Application of the principles to Ellen’s Case

All of the three principles above apply to the case of Ellen in different ways. The first principle is that of contract, implying the contract that Ellen entered into with the owner of the premises. In this case, Ellen might be forced to forego or breach her contract agreement with the owner if she leaves the premises before the 12 months’ period. In such a case, she will be liable to paying damages to the owner for not honoring the terms of the contract3. If Ellen should avoid such a scenario, she would be required to maintain the premises for the entire time, which means that she will compromise the prospects of her business for the entire time that the construction will be taking place. Although she will work on loss during this time as she will not be expected to have many clients, she will avoid paying damages to the owner when she leaves midway the contract.

The other issue in Ellen’s case is the misinformation that she received from the council employee. On the first instance, the council acted on intentional interference with her interests when it cleared the construction to be done in the location near to hers. Because she had made clear her desire to have the place quiet for the meditation activities, it was the role of the council employee to assure her that the place met this requirement. If the construction company sought permission for the construction activities after Ellen’s request had been granted by the council, it was the role and responsibility of the council to deny them this permission with regard to Ellen’s request. The second scenario would be where the construction company had sought permission for their construction work prior to Ellen’s request, which would imply that the council employee failed in his duties to give Ellen accurate and truthful information about the suitability of the location.

In both scenarios, it is true that the activities of the construction company would deny Ellen a chance to effectively carry out her activities, which would cause her to leave the premises prematurely or persevere and operate on loss because she would lose her clients. In both cases, the council, through the employee, was responsible for the ill information that they gave Ellen, and for the problems and loss that Ellen was experiencing in the premises. Ellen could prove this liability on the part of the council by showing the relevant documents for her clearance for the premises and in the event that she does not have the documents, get to convince the court of the expressed permission she was given to go ahead with her plans for the premises. She would then prove to the jury the loss that her business would suffer through the construction activities. She would have to demonstrate that the noise from the construction affected her meditation activities, thus making the premises unsuitable for her venture.

Conclusion

From the facts and legal principles above, the council, through the employee, was liable for the loss that Ellen would suffer in her business. The employee had caused intentional interference to Ellen, and had acted negligently to Ellen in her quest. Because Ellen had relied on the information from the council to establish her business and enter into a contract with the owner of her premises, the council was liable for both the damages arising from the contract and for the loss that Ellen’s business would have to suffer as a result of the construction activities. The council, therefore, would have to compensate Ellen for both the breach of contract and for the loss that her business suffered. Referring to the ruling made in the case of Mabo v Queensland (No 2) (1992) 175 CLR 1, the evidence present proved this loss, and the activities of Ellen exonerate her from negligence on her part as she took all measures possible to ensure that she complied with the council’s regulations on business activities.

Reference List

Ciro, T., Goldwasser, V., & Verma, R., 2011, Law and Business, Melbourne: Oxford University

Press, p. 142.

Crosling, G. & Murphy, H., 2000. How to Study Business Law- Reading, Writing and Exams,

3rd Ed, p 122.

McKendrick, E., 2009, Contract Law, London: Palgrave.

1 McKendrick, E 2009, Contract Law, London: Palgrave.

2 Crosling G.M. & Murphy H.M 2000. How to Study Business Law- Reading, Writing and Exams, 3rd Ed, p 122).

3 Ciro, T., Goldwasser, V., & Verma, R 2011, Law and Business, Melbourne: Oxford University Press, p. 142.