Business And Corporation Law: Smoke Assessment Answer

1:  A Voluntary arrangement which is written, oral or verbal agreement which is legally enforceable between two or more persons is said to be a Contract whereas when it is not legally enforceable then it is said to be an agreement only. In order to be a Valid Contract it should contain certain elements which are as follows:

Proposal made and approval given

Aim to perform lawful obligation

Price paid for the promise or anything in exchange which has value must move from one person to another

Legal Capacity – he must be of sound mind not minor

Consent must be freely given

Verbal agreements are oral contracts which are not written down on paper in writing and are binding on the parties to contract. However, verbal contracts may have unique complications to them (H.G.org, 2016).

Consideration – Something paid or given in exchange which is valuable

Consideration is the price paid or something which is in existence and have value is given by one party to another. It may be pecuniary, such as a cash or fund, or it may be some kind of  good or any service performed (Emery & Associates,2016).

Elements essential to make a Contract Enforceable are as follows:

Agreement must be related and connected to all the elements required in an agreement..

The agreement should be valuable "consideration".

The parties must show a intention to be legally bound by the agreement(Redlich, 2014).

In this situation, as Jane made an offer to give her sports car to Jack , the value of which is $25 000, Jack accepts the offer. It clearly describes that a verbal agreement is done between the two. A car which is of high monetary value has been moved by way of consideration from Jane to Jack as he shows his consent for the same by accepting it.

In the above mentioned situation as a car was given in lieu of money as consideration similarly in the case of Chappell and co ltd Lord Somervell of Harrow communicated the perspective that a "peppercorn" could constitute profitable thought (if stipulated by the promisor) regardless of the possibility that the promisor was not attached to peppers and would dispose of the corn (note, nonetheless, that sufficiency of thought might be significant in different regards; specifically, it might be proof of pressure or unconscionable behavior which may render the agreement voidable)(Chappell and Co Ltd v Nestle Co Ltd, 1960).

Therefore, it can be clearly seen from the above explanation that Consideration is present and also the agreement is enforceable as all the three elements required for a agreement to be enforceable are present.

Yes, Consideration is present and also it is an Enforceable Contract as per the explanation provided above  as to what is consideration and what are the elements which distinguish a contract to be a enforceable or not.  As stated above in this situation as there is a intention to create a legal obligation with a lawful consent without any influence; consideration is clearly given from the promise to the promisor which is a price paid (monetary value) and is clearly enforceable.

The New Zealand Court of Appeal for this situation confirmed that "a Court just wants just the meeting of minds and does not make an assessment of the comparable estimation of the exhibits or ensures of the social occasions towards each other." Nominal believed is satisfactory (Melmerley Investments Ltd v McGarry, 2001).

Yes, in this situation as Jane made an offer to sell Jack her car for $2500, the value of which is $25 000, Jack accepts the said offer. It can be said that consideration is present in the same as a price has been paid for the car to Jack and it is clearly stated above that whether any monetary price or anything which have a monetary value which have been moved from the promisor to the promisee is considered to be consideration. As all the elements needed for a contract to be enforceable are there so this is also a enforceable contract.

It takes after from this that thought must move from one person to another. For instance, if promisor (An) asks promisee (B) to pay (C) a total of cash as thought for A's guarantee to B, that will be great thought. Nonetheless, if promisor (An) asks (C) to give an installment as thought to A's guarantee to B, that won't constitute great thought (there is no impairment to B in, for example, case). On account of joint promisees, it is adequate if thought moves from one of the gatherings (Coulls v Bagots Executor and Trustee Co Ltd, 1967).

Consideration must be something which is of value under  law. An uneven guarantee which is not bolstered by thought is a blessing. The law does not uphold blessings unless they are made by deed (Thomas v Thomas, 1842).

As noted above, thought is the cost stipulated by the promisor for the guarantee made. Cost, in this sense, is utilized as a part of a wide sense; it need not be money related or even of financial quality; while it requires some "impairment" for the promisee, this impediment can appear as surrendering a flexibility generally appreciated, (for example, promising to quit smoking or to concentrate each Saturday night) and the promisor need not get any unmistakable advantage (Carlill v Carbolic Smoke Ball Co Court of Appeal,1893).

In Carlill, for instance the Court said that it would be adequate if Mrs Carlill experienced the impediment utilizing the smoke ball as coordinated regardless of the fact that the Carbolic Smoke Ball Co got no advantage (this was obiter as the Court did inferred that the organization did in certainty get an advantage) (Carlill v Carbolic Smoke Ball Co Court of Appeal,1893).

2:

In this situation, No the buyer will not succeed in recovering the excess payment so made by him to the ship builder as the amount was paid by the buyer by accepting the term of exceeding the money as asked by the shipbuilder due to the  devaluation of United States  currency by 10 per cent was asked by the shipbuilder. It was not forcefully imposed on the buyer to consider the same but as he did due to a reason that he thought as the work is in the middle so if he will say no to pay the shipbuilder, the shipbuilder will leave the work then and there and will not work . The litigants consented to assemble a tank as it was concurred that the price, so altered in U.S. dollars, was to be paid in 5 installments.  Agreement also required the respondents to give security for reimbursement of portions for default. When the final installment had been paid the U. S. dollar’s valued decreased  by 10%, by way of which the respondents guaranteed to build the last installments by that sum. The respondents then thought to end the agreement if their case was not perceived. The offended parties, were compelled to pay the additional 10% without bias to their rights. The offended parties paid the rest of the portions and took conveyance of the tanker. It was  held that the agreement to payoff was maintained by thought as the respondents' surety to assemble the letter of credit (North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd and Another, 1978).

He also acknowledged the offended party's conflict that this understanding was voidable for Economic pressure, in light of the danger to end (illegal) the agreement. It was founded that  offended parties had been constrained by the danger to pay the overpayment. Nonetheless, he refused as offended parties had by their behavior confirmed the agreement.

In this case Mocatta J. inquired the powers and concluded that voluntary act'. incorporates each types of coercion or behavior closely resembling pressure, genuine or debilitated, applied by or for the benefit of the person who pays and connected to the individual or the land or any privilege of the individual who makes the payment, He reasoned that such impulse may appear as 'financial coercion's and that a danger to break an agreement may add up to such pressure. Like Kerr J., he dismisses the impediment that an agreement couldn't be stayed away from for pressure other than to the individual (Stone &Devenney, 2014).

Held, , that the organization were not simply satisfying a previous legally binding commitment but rather were embraced something extra and, in the circumstances, the expansion was thought for the assention by which the proprietors expanded their installments under the first contract(North Ocean Shipping Co Ltd V Hyundai Construction Co Ltd And Another, 1978).

That the organization's danger to break the agreement with no legitimate defense unless the proprietors expanded their installments by 10 for each penny. amounted to coercion as financial weight and, in like manner, that, as there was no probability that the organization would withdraw from the agreement to assemble the tank on time she expected for conveyance, the proprietors, made the last installments without dispute besides by their deferment going before putting forth a defense for landing more installments and, in like way, their case failed (Stilk v. Myrick ,1809). Regardless of the way that there is another decision which is being won in a part of the cases which is Economic dureness.

Monetary pressure in contracts is the point at which a man have no other alternative generally to acknowledge the conditions so expressed by the inverse party it should be possible by method for debilitating or putting a man in such a circumstance, to the point that the individual have no chance other than to acknowledge the same(Schubert,2016).

For this situation it was held, that an agreement went into under coercion is voidable and not void: "... thus a man who has gone into an agreement under coercion, may either attest or maintain a strategic distance from such contract after the pressure has stopped; and on the off chance that he intentionally acted unlawfully having full information of  considerable number of situations  he was held bound for sanction, or if, in the wake of getting away from the coercion, he approaches no progressions to set the exchange, he might be found to have asserted it" (Chitty on Contracts,1977).

In this way, it is reasoned that the purchaser has no privilege to assert any exorbitant add up to be paid to him by the shipbuilder since he had full information about the condition and he intentionally consented to pay additional sum.

Reference:

(Carlill v Carbolic Smoke Ball Co Court of Appeal,1893). Retrieved on 12^th aug, 2016 from: https://netk.net.au/Contract/02Formation.asp

Carlill v Carbolic Smoke Ball Co Court of Appeal [1893] 1 QB 256; [1892] EWCA Civ 1. Retrieved on 12^th Aug, 2016 from: https://www.australiancontractlaw.com/cases/carlill.html

Chitty on Contracts, 24th ed. (1977), vol. 1, para. 442, p. 207. Retrieved on 12^th aug from : https://www.icab.org.bd/images/stories/icab/campus/study_materials/knowledge_level/The%20Atlantic%20Baron%20Case%20QB%20.pdf.

Coulls v Bagots Executor & Trustee Co Ltd (1967) 119 CLR 460. Retrived on 12^th Aug, 2016 from: https://www.australiancontractlaw.com/cases/coulls.html

Emery, R. P. & Associates. (2016). Is a verbal agreement legally binding? Retrieved on 12 August 2016 from: https://www.findlaw.com.au/articles/5626/is-a-verbal-agreement-legally-binding.aspx.

 H.G.org. (2016). Are Verbal Agreements Binding? Retrieved on 12 August 2016 from: https://www.hg.org/article.asp?id=35794.

Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87. Retrieved on 12^th August, 2016 from: https://www.australiancontractlaw.com/cases/chappell.html.

 Melmerley Investments Ltd v McGarry CA141/01, 6 November 2001 at [21]. Retrieved on 12^th Aug 2016 from: https://www.otago.ac.nz/law/research/journals/otago036314.pdf

North ocean shipping co ltd v hyundai construction co ltd and another the atlantic baron queen's bench division [1978] 3 all er 1170, [1979] 1 lloyd's rep 89 20 july 1978. Retrieved On 12^th Aug, 2016 From: https://www.icab.org.bd/images/stories/icab/campus/study_materials/knowledge_level/The%20Atlantic%20Baron%20Case%20QB%20.pdf.

North Ocean Shipping Co. Ltd. v. Hyundai Construction Co. Ltd and Another Queen's Bench Division QBD (Comm Ct) Mocatta J. 1978 June 6, 7, 8, 9, 12, 13, 14, 15, 16, 19; July 20. Retrieved on 12^th aug, 2016 from:[1978J 3 All E.R. 1170; Coote B., 'Duress by Threatened Breach of Contract' (1980) 39 Cambridge Law Journal 40; Adams T., "Contract Law at Sea'! North Ocean Shipping Co. Ltd. v. Hyundai' (1979) 42 Modern Law Review 557; https://www.austlii.edu.au/au/journals/MelbULawRw/1984/3.pdf

Redlich, H. (2014). Australia: When is a done deal not done?: a legally enforceable contract, Retrieved on 12 August 2016 from: https://www.mondaq.com/australia/x/291480/Contract+Law/When+is+a+done+deal+not+done+a+legally+enforceable+contract

 Schubert, J.(2016). Economic Duress in Contract Law: Definition & Cases. Retrieved on 12^th aug 2016 from: https://study.com/academy/lesson/economic-duress-in-contract-law-definition-cases.html.

 Stilk v. Myrick (1809) 2 Camp. 317. Retrieved on 12^th aug from : https://www.icab.org.bd/images/stories/icab/campus/study_materials/knowledge_level/The%20Atlantic%20Baron%20Case%20QB%20.pdf.

 Stone, R & Devenney, J. (2014). Text, Cases and Materials on Contract Law.(Edition- 3).London and New York. Routledge Taylor and francis group.

The Law Handbook. (2015). Victoria’s most trusted practical guide to the law since 1977. Retrieved on 12^th aug, 2016 from: https://www.lawhandbook.org.au/07_01_02_elements_of_a_contract/

 Thomas v Thomas, (1842) 2 QB 851.  Retrieved on 12^th aug, 2016 from:  https://e-lawresources.co.uk/Consideration.php