Contributed Negligence On The Part Of Harry -Myassignmenthelp.Com

Question: Discuss About The Contributed Negligence On The Part Of Harry? Answer: Introducation In the present case, the issue arises if Susan can avoid the contract that she has signed on the grounds of tourists and undue influence. Rule: the law of contract provides that a party is allowed by the law to avoid a particular contract on the grounds of duress and undue influence. The reason is that in such cases, the consent of the party to the contract has been obtained by some type of pressure which is considered to be unacceptable by the law of contract (Johnson v Buttress, 1936). In this regard, duress is related with the circumstances where the consent of the complainant to the contract was being obtained by using a legitimate pressure like a threat of using physical violence or by economic pressure (National Westminster Bank v Morgan, 1985). Similarly, in case of contract law, undue influence is related with the cases where one person has significant influence over the other and that influence has been used in an unacceptable way for the purpose of procuring the consent of the other party to enter into the contract (Bank of Credit Commerce International v Aboody, 1990). The law requires that the consent of t he other parties would not be vitiated by undue influence. In a particular case, it can be said that the contract was the result of the pressure exerted by the other party, falling short of duress. Hence, such party may take action to avoid the contract if it has to face the pressure and it entered the contract on account of such pressure (CIBC Mortgages v Pitt, 1994). Application: In this case, it is clear that Susan has not entered into the contract with Tom out of her free will. In this case the consent was vitiated by the presence of undue influence. Under these circumstances, Susan signed the contract with provided that in case of divorce between the parties, she will take only $100,000. The contract was signed by Susan reluctantly and under pressure because Tom had threatened to cancel the wedding while their relatives have already arrived. The issue that arises in this question is related with the fact if Jason can force Steve to purchase the car on grounds of promissory estoppel. Rule: According to the doctrine of promissory estoppel, it has been mentioned that a party to the contract may enforce a promise made by the other party even if there is no consideration present to support the promise (Crabb v Arun 1976). This is allowed in cases where a promise has been made by one party to the other and the other party has relied on the promise to its detriment (Central London Property trust Ltd V. High Tree House Ltd., 1974). The doctrine of promissory estoppel was introduced by the courts for the purpose of preventing the party making the promise from claiming later on that (Total Metal Manufacturing Ltd V. Tungsten Electric Co Ltd., 1955). The promise made by such party should not be enforced by the law because it is not supported by consideration (Hughes V. Metropolitan Railway, 1877). Application: In this case by applying the doctrine of promissory estoppel, it can be said that Steve had inspected the car for four hours. Later on he told Jason that he will buy the car only if it had a turbo engine, tinted windows and leather seats. Jason relied on this statement and spent nearly $50,000 for installing all these things in the car. But later on, Steve refused to fulfill his promise of purchasing the car. Therefore in the present case, it has to be seen if Jason can make Steve fulfill his promise, particularly in view of the fact that the promise was not supported by consideration. By applying the doctrine of promissory estoppel, it can be said that in this case, a contract has been created between the parties although the promise was not supported by consideration. in the present case, the issue needs to be decided if Carl is liable in negligence and if any defense is available to him. Rule: The law requires that certain elements should be present in order to bring a successful claim under negligence. Therefore, the claimant has to establish the presence of all these elements for initiating a successful claim. The modern law of negligence draws heavily from the decision given in. Donoghue v Stevenson (1932). Therefore, the elements that need to be established in case of a claim in negligence can be described as follows:- Duty of care Breach of the duty Causation Proximate cause Damages The law requires that all these elements should be present in order to conclude that the defendant was liable in negligence (Caparo Industries pIc v Dickman, 1990). At the same time, the law provides a defense against a claim of negligence. This defense is present in the form of contributory negligence (Barnett v Chelsea Kensington Hospital, 1969). The defense of contributory negligence can be used for describing the conduct of the claimant due to which the claimant has created an unreasonable risk regarding its own safety (Revill v Newbery, 1996). The law provides that every person is bound by the duty to act reasonably. On the other hand, when a particular person has not acted in a reasonable way and as a result, has suffered an injury, such person can be held completely or partially liable for the injury, although there was another party that was also involved in the accident. Application: In the present case, it can be said that Carl was negligent and as a result, Harry had suffered an injury. The reason is that all the elements necessary for establishing negligence are present in this case. However, Carl can claim the defense of contributory negligence because Harry decided to eat the fish, although he was aware that the fish was highly poisonous and should be prepared by a skilled chef. It has to be considering this question, if the rights and remedies provided by the Australian Consumer Law (ACL) against false and misleading than that are available to Betty. Rule: It has been mentioned by the Australian consumer law that false or incorrect statements cannot be made by businesses due to which a false impression may be created among the consumers (Re Henjo Investments Pty Ltd., 1988). This prohibition also applies in case of the advertising or the packaging of the products (Houghton v Arms, 2006). Similarly, it applies to any information given to the consumers by the staff of the company (Perre v Apand Pty Ltd., 1999) or the information present on the website of the company (Concrete Constructions (NSW) Pty Limited v Nelson, 1990). Application: In this question, it can be concluded that false and misleading statements have been made on the website of the company. This type of conduct is prohibited by section 18 of the ACL. Hence the rights and remedies that are provided by the ACL for such conduct are available to Betty. References Bank of Credit CommerceInternational v Aboody [1990] 1 QB 923 Barnett v Chelsea Kensington Hospital [1969] 1 QB 428 Caparo Industries pIc v Dickman [1990] 2 AC 605 Central London Property trust Ltd V. High Tree House Ltd. (1974)1 KB 130 CIBC Mortgages v Pitt [1994] 1 AC 200 Concrete Constructions (NSW) Pty Limited v Nelson [1990] HCA 17 Crabb v Arun (1976) 1 Ch 179 Donoghue v Stevenson [1932] AC 562 Houghton v Arms [2006] HCA 59 Hughes V. Metropolitan Railway (1877)2 App Case 439 Johnson v Buttress (1936) 56 CLR 113 National Westminster Bank v Morgan [1985] 1 AC 686 Perre v Apand Pty Ltd [1999] HCA 36 Re Henjo Investments Pty Limited [1988] FCA Revill v Newbery [1996] 2 WLR 239 Total Metal Manufacturing Ltd V. Tungsten Electric Co Ltd. (1955) 1 WLR 761