Vendor & Purchaser 2 Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    4
  • Words:
    2338

Vendor and Purchaser

Q1. What advice would you now give to Stephen?

The existence of a caveat is serious element to the land disposition. In cases where there is a caveat lodged on a tile to land as in this case, Caveat W9988223, this Michael’s registered property cannot be disposed to Stephen since the land is subject to the caveat as reflected in the s91 (Transfer of Land 1958 Vic, the TLA.). In order
for Stephen to be disposed this land, he must seek to have this caveat removed before contracting and accepting this land from Michael. The caveat removal can be through, having the Registrar issue a notice requesting the caveator to give a notice of abandoning the claim1. The Registrar can also issue the proceedings substantiating the claim. It can also remove through having person lodge a dealing on the title and wait for 30 days to pass following the issuant of a notice to caveator by the registrar indicating that the caveat has elapsed. Stephen and Michael can only make an application to the Court for the removal of the caveat. Since Stephen case is an urgent application to the Court for the removal of the caveat is appropriate since it is the quickest way and certain approach for the removal of caveat or its substantiation. As reflected in s90 (3) TLA, Stephen is in this case adversely affected by Caveat W9988223 and hence it is appropriate that he brings the proceeding in the court to oppose this caveat for its subsequent removal so that the court can make the appropriate order as it deems it fit. It is appropriate that this is done urgently since caveat has a potential to bar the settlement on land sale scheduled within the short duration as seen in Stephen Vs Michael. Stephen needs to move expeditiously and apply for the caveat removal by originating this motion in Form 5C alongside the affidavit for a subsequent summon to be issued for effective dispensation of this requirement for the defendant to file as well as serve an appearance as provided for under rule 45.05 of the Charter I of the Supreme Court or the General Civil Procedure and Rules 2005. As Stephens attaches the affidavit, he should be keen and detail it comprehensively. For example, he should attach a copy of the title search for the property where the caveat is registered. He should also attach the copy of the caveat that has been registered on the title. He should also not forget any agreement and documentation useful to this caveat of which he is aware of. Finally he must have the facts or the admissible for attached in which he demonstrates how such a caveat is unsustainable. The authorities useful in withdrawing the caveat include Attorney, solicitor and licensed conveyancer. For Stephen to feel satisfied and safe in this contract, or compensated (refund), he ought to have
rejected
the
faulty
item within a reasonable
time after the
purchase the realization of the existence of the caveat.

Q2. Do you agree with this statement? 

An individual should check for the possible areas of breach of contracts resulting from the transaction involving defective good with their respective parties to a contract and to propose a possible solution mechanism the. Under the Sale of Goods Act, all goods must be as described, of satisfactory quality and fit for purpose and thus a retailer is deemed to have breached the contract and the buyer have a claim for compensation as outlined in section 14 of Sale of Goods Act. Therefore, an individual has right to reject within a reasonable time and make claims under the Sale of Goods Act based on various possible ways to resolve the issues based on the circumstances and on what they want to be done as provided for in the implied terms section 12 of Sales of Goods Act.. 2I agree with the statement that one has a right to rescind a contact as provided for in the common law in case of a defective product or part of the product. The law provides for a rescissible contract in which case, a contact has all other requisites but causes a given economic damage to a third person or a party to the contract. The person rescinding the contract however must convince the agency or the authority that he lack any other legal means acquire the reparation for the damages he has suffered. In addition, he should be able and willing to hand over back whatever benefits he had acquired by reason of the said rescinded contract. He should also convince the authority handling the case that the items object of the contract must have never been passed legally to any third party or person in good faith. The party to a contract is required to feel satisfied with the product and should therefore not be cornered or manipulated to accept a defective good

According to the case, Bowes v Richardson & Son Ltd, the buyer was held by the Courts entitled to reject a new car seven months after delivery based on various car problems some occurring immediately after delivery and others months later3 . The Court held that the buyer had never had the opportunity to fully assess the repairs made on the car as so could never be held to have accepted the goods4. Such case law authority is a precedent for this case giving an individual opportunity to rescind. An individual should rescind the contract according to Case Law Authority, in Hurst V Grange Motors, the buyer rejected a second-hand Rolls Royce after three months and the Court held that to be a valid rejection as the three months between purchase and learning of the seriousness of the defect the buyer had no enough opportunity to ascertain the car’s conformity to the contract and hence had not accepted. Such a ruling fits this case well and should be used as a precedent5. According to Stephen, he
was within the timeframe, and
he
was
right to reject
the
product
and
return
it
for a refund as he
did.

On the hand, each party can make a claim on goods sold on hire purchase not through Sales of Goods Act but via the Supply of Goods Implied Terms Act 1973 that makes the Hire Purchase Company responsible for the quality of the goods supplied and offers him slightly different rights. An individual is also protected under the Consumer Credit Act 1974 to decide on the best way possible to end his agreement in his cases against defective goods or contract.

. A party is free to rescind if one has a free consent and Court order are critical and should be honored even if he had not met a third of the amount outlined in the agreement. He has to follow three options to take; if he is still willing to keep the contract and can afford the full monthly installment and part of arrears, the law provides that the creditor can reduce the amount of installments with as small amount of a short time. He can also go to Court and obtain a ‘time order’ and establish an agreement of how to have a better contract as provided for under Consumer Credit Act 1974. 6In this case, an individual must review the agreement and particularly, the ‘Repossession: your rights box’ that clearly outlines how much the other party need to have paid (a third of total amount) to maintain the contact or uphold it taking the product back without a court order or his consent. He is, however, mandated to decide on what to do before his Financial Institution repossess the product

Q5. What advice would you give Leslee about her rights and obligations given these circumstances? 

Leslee has various options available for this particular circumstance to help her solve the issue. The first and most appealing option is to solve it locally between them. She needs to confirm whether it is true that oversees removalist track had actually faced the said accident or it was a mere cover up. In case her investigation reveals that it was true that the track had actually set off and had the accident, she should understand the other party’s situation since it was not a bad intention. The accident could not have been prevented and therefore, it would be irrational for Leslee to act in a manner that is seen to compromise or complicate the other party’s already worsened situation.

. On the other, hand the whole situation could have been a cover up and there could actually been that no track had faced any accident. In this case, Leslee has a right under the law to take the matter to the court or the report to the agencies to solve it. Still Leslee ha an option of inquiring from her fellow what the intention could have been and he can take any further decision based on the reasons given to her. 7She needs to give her enough time or considerable time to vacate and evacuate the properties as already stated that another rescue track would be arriving after the 2 PM. This decisions or strategy sounds fair and rational for the two parties in this contact so that no one gets compromised

Q6. Advise Carolyn and Fred about their rights and obligations in these circumstances.  Discuss relevant authority to illustrate and support your advice

.  They can as well be compensated for the damages caused by the rising waters which pushed a parked car through the front brick fence knocking over the support posts on the carport at the front of the property causing the carport to collapse. They have two options to solve the problem: the vendor can be made to fix the damaged items and or they can agree to fix them by themselves and get compensated for the amount spent for fixing the damages. 8They can be compensated for the damages caused by the flood including the ruined carpets, dishwasher, stove, washing machine which are included in the sale and the bottom of the kitchen cupboards and ruined the original timber floor boards throughout the house which were polished and a very attractive feature of the househave the right to go ahead and purchase the property as already agreed. Carolyn and FredIn this case, both

. Through the vendor, Carolyn and Fred should get this problem solved either in court or local arrangement.9The vendor should be forced to fix the damages caused due to the bad drainage system of the house which should never have been the case. The low requires that the house should be constructed or build after evaluating the necessary requirement including the impacts of the catastrophes, in this case floods. It would be disastrous for the Carolyn and Fred to pay for this damages outside the amount already agree upon since this negligence is on the part of the constructors of the house and the vendor

It would a major loss to Fred and Carolyn to be left with the responsibility to pay for the negligence of another person. They need to try solving this dispute locally between them and the vendor but in case the vendor refuses to fix the problem, Fred and Carolyn have the avenues in court to solve the problem. The vendor therefore should assume the responsibilities of ensuring that the premises are safe for occupation and that everything already included in the contract is as per the requirement of the party to the contract. In cases where the vendor fails to do so, Fred and Carolyn will have other avenues including the lawsuits to seek for justice and the vendor will be forced to ensure that he remains within the confinement of the agreement or the contract as already agree upon. It should be emphasized that all parties to the contract need to be treated fairly and the purchaser should get the value of his money.

Works Cited

Abdolshah, Mohammad. «A Review of Quality Criteria Supporting Supplier Selection.» Journal of Quality and Reliability Engineering 2013 (2013).

Ausness, Richard C. «From Caveat Emptor to Strict Liability: A Review of Products Liability in Florida.» U. Fla. L. Rev. 24 (2010): 410.

Brooks, Richard RW, and Alexander Stremitzer. «Remedies on and off Contract.» The Yale Law Journal (2011): 690-727.

Feldman, S. W. Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer. Valparaiso University Law Review, 47. 2013. Print.

Goldring, John. Consumer Protection Law. Leichhardt, N.S.W: Federation Press, 2012. Print.

McEniery, Benjamin J., and Kylie Downes. «Caveat today gone tomorrow: Applying to the Supreme Court to Remove a Caveat.» Proctor (2011): 42-44.

Shrimali, Logeek. Analysis of success factors for supplier development. Diss. San Diego State University, 2010.

To, Return Of Benefits As Prerequisite. «Return Of Benefits As Prerequisite To Contract Rescission.»

1
McEniery, Benjamin J., and Kylie Downes. «Caveat today gone tomorrow: Applying to the Supreme Court to Remove a Caveat.» Proctor (2011): 42-44.

2
McEniery, Benjamin J., and Kylie Downes. «Caveat today gone tomorrow: Applying to the Supreme Court to Remove a Caveat.» Proctor (2011): 42-44.

3
Feldman, S. W. Rescission, Restitution and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer. Valparaiso University Law Review, 47. 2013. Print.

4
McEniery, Benjamin J., and Kylie Downes. «Caveat today gone tomorrow: Applying to the Supreme Court to Remove a Caveat.» Proctor (2011): 42-44.

5
Brooks, Richard RW, and Alexander Stremitzer. «Remedies on and off Contract.» The Yale Law Journal (2011): 690-727.

6
Goldring, John. Consumer Protection Law. Leichhardt, N.S.W: Federation Press, 2012. Print.

7
Ausness, Richard C. «From Caveat Emptor to Strict Liability: A Review of Products Liability in Florida.» U. Fla. L. Rev. 24 (2010): 410.

8
Ausness, Richard C. «From Caveat Emptor to Strict Liability: A Review of Products Liability in Florida.» U. Fla. L. Rev. 24 (2010): 410.

9
Abdolshah, Mohammad. «A Review of Quality Criteria Supporting Supplier Selection.» Journal of Quality and Reliability Engineering 2013 (2013).