Commercial Law Assignment: Case Of Sally And Ethan

3 Issue: In the transaction between Sally and Ethan there was a clause in the contract dictating that Sally would not be allowed to open a similar store within a radius of 100 Kms. However Sally opens a similar store the next year within a radius of 20 Kms. The issue here mentioned in this commercial law assignment is to determine if such agreement in restraint of trade is reasonable and if so the remedies available for the breach. Rule: Agreements in restraint of trade are agreements governing the commercial conduct of the parties to a contract outside the same. These primarily refer to a restriction placed on either party or both. In order to be reasonable such a term would have to be certain and by this a certain degree of commercial certainty is required as laid down by the court in Bulldogs Rugby League Club Ltd & anor v Williams & ors . Thus, for an agreement in restraint of trade to be reasonable the same must be certain from a commercial perspective. In case of a breach of such a contract the court would be inclined to award damages as evinced in John Fairfax Publications Pty Ltd v Birt . Application: In this case the agreement in restraint of trade restricted Sally from opening a similar convenience store within a radius of 100 Kms for a period of 10 years. Sally however acts in breach of the same and opens a shop within a radius of 20 Kms. Since the agreement was time bound the court would infer that the same was reasonable and commercially certain as per the rule laid down in Bulldogs Rugby League Club Ltd & anor v Williams & ors. Due to such breach Ethan would be able to get damages if he pursues such a claim in court as per the judgment in John Fairfax Publications Pty Ltd v Birt. Conclusion: To conclude, the agreement in restraint of trade would be reasonable and thus valid. Thus Ethan would be able to claim damages in court as a remedy to the same. Part B Issue: Sally had slipped during a business trip and had injured herself. She had to be subsequently hospitalized for two weeks. After her discharge from the hospital she visited a medical company for advice called Good Health Help Pty. Ltd. This company provided her with incorrect advice which led to her undergoing a surgery which aggravated her condition. The issue here discussed in this commercial law assignment is to set out the consumer guarantees she would have under Australian Consumer Law and the remedies for breach of the same. Rule: A consumer is the ultimate procurer of a good or service in the market. As the product is designed for the ultimate use by the consumer certain protections need to be provided which ensure consumers purchase products that meet their needs. The Competition and Consumer Act, 2010 (Cth) deals with and regulates consumer protection laws within the territorial jurisdiction of Australian Commonwealth. Thus Schedule 2 of the act, which deals with consumer law, also provides for the consumer guarantees provided for under law. However a transaction falling within the ambit of the act must be inferred first. The act applies to transactions which are within the financial limit of AUD $40,000 and are for personal, domestic and household use . In case of services the consumer guarantees relating to the same are set out in the act itself. The first consumer guarantee relating to service is that a certain degree of due care and skill will be applied while using the same . This ensures a degree of diligence to be adhered to by the professionals providing the services. The second guarantee is the guarantee of fitness which states that the service would be fit for the purpose sought by the consumer . The third consumer guarantee is that the services will be rendered within a reasonable time . In case of a failure to observe these guarantees the consumer may terminate the contract or claim compensation in case the failure cannot be remedied or seek damages for the same . Application: In case of the transaction between Sally and Good Health Help Pty. Ltd. it is evident that Sally was acting in the capacity of a consumer. This is because she would be ultimate user of the service and was using it for her personal need. Thus the consumer guarantees embodied in Sections 60-62 of the Competition and Consumer Act, 2010 (Cth) would have to be observed. However, as the advice provided to Sally by Good Health Help Pty. Ltd. was incorrect and the same made her medical condition worse it can be inferred that the service was not delivered with care thus being in breach of Section 60 of the Act. Moreover, the service provided was certainly not fit for the required purpose and further aggravated her condition thus being in breach of Section 61 of the Act. Thus two major failures to observe consumer guarantees can be evinced in the transaction. This is a breach which cannot be remedied and is further is a major failure to observe consumer guarantees . Thus Sally would be able to demand compensation and claim damages for the injury caused to her in the capacity of a consumer as per the provisions of Section 267(3) of the Competition and Consumer Act, 2010 (Cth). Conclusion: Good Health Help Pty. Ltd. are in breach of consumer guarantees and Sally would be able to claim compensation and damages for the same. Part C Issue: Sally, while visiting her new store for inspection slips on a puddle of water and injures herself. She has to be hospitalized for two weeks due to the same. The store was being managed and operated by David at the time. The issue mentioned here in this commercial law assignment is to determine is an action for negligence can be made against David in this case. Rule: Although there are four primary essential elements to establish a claim of negligence the most important aspect of such a claim is a duty of care owed to another person. This is the core of such a claim. When a duty of care is owed all foreseeable risks must be mitigated by the person owing such a duty as observed by the court in Donoghue v Stevenson . Thus the first essential element of negligence is the duty of care. The second element which must be established is a breach of such a duty. In case such a duty is ultimately breached a legal injury must ensue and the same would have to be established as the third essential element. The final ingredient in an action for negligence mentioned in this commercial law assignment is the establishment of damages which are being claimed for the injury caused by the breach. This was reiterated by the court in the judgment in Anns v Merton London Borough Council . Thus if these elements may be established a claim for negligence can be made against a person. Application: In the given set of facts and circumstances it may be seen that Sally is a visitor on the premises of the store and the duty of management and operations of the same is entrusted in the hand of David. The store has a slippery area where a visitor may slip and face a serious injury. The operator would thus be in charge of ensuring that such an incident does not happen and the risk is mitigated. Thus following the judgment laid down in Donoghue v Stevenson it may be inferred that a duty of care was owed by David to all visitors on the premises including Sally. Thus by not mitigating such a risk the duty was breached by David. This breach consequently led to the injuries faced by Sally and her being hospitalized for two weeks. Thus a conspicuous legal injury can be inferred which would translate into damages. Resultantly applying the judgment of the court in Anns v Merton London Borough Council it is evident that damages can be claimed by Sally in such a situation. Thus an action for negligence would be maintainable. This would mean that a court would be likely to uphold such an action and would be inclined to award damages for the same. Conclusion: Thus, an action for negligence would be upheld by the court in this case of commercial law assignment due to the clear presence of all elements of a claim for negligence. Resultantly due to the presence of all the ingredients for a claim for negligence Sally would be able to demand damages for the injuries suffered by her. Get Top Quality Assignment Help and Score high grades. Download the Total Assignment help App from Google play store or Subscribe to www.BestAcademicExperts.org and receive the latest updates from the Academic fraternity in real time.

Subject Name: Corporation Law_x000D_

Level: Undergraduate

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